till 


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V.I 


Altrp  JfroBt  Ifnfoarb 

HEK    HUSBAND    DEDICATES    THIS    BOOK   IN 

GEATEFUL    EECOGNITION    OF    HEE 

AID    IN    MAKING    IT 


PKEFACE 

It  is  an  encouraging  sign  of  advancing  culture  that  his- 
tory is  gaining  a  deeper  and  broader  meaning.  We  are 
really  becoming  interested,  not  merely  in  our  political,  but 
also  in  our  entire  biological,  psychological,  and  social  evolu- 
tion. Although  such  phrase-making  is  nearly  always  mis- 
leading, there  would  perhaps  be  more  truth  in  saying  that 
"history  is  past  sociology  and  sociology  present  history" 
than  in  Freeman's  well-known  epigram.  In  particular,  the 
human  family,  with  all  that  the  word  connotes,  is  commanding 
greater  attention.  Yet  there  is  urgent  need  that  its  rise  and 
social  function  should  have  far  more  earnest  study  than  they 
now  receive.  The  family  and  its  cognate  institutions  ought 
to  enter  more  fully  into  popular  thought ;  and  they  should 
have  much  larger  relative  space  in  the  educational  program. 
From  the  home  circle  to  the  university  seminar  they  are 
worthy  to  become  a  vital  part  of  systematic  social  training. 
In  the  hope  of  aiding  somewhat  in  winning  for  them  due 
scientific  recognition,  this  book  is  written.  It  seems  not 
impossible  that  a  sustained  history  of  the  matrimonial  insti- 
tutions of  the  English  race  in  its  "three  homes"  may  prove 
a  positive  advantage,  especially  in  gathering  the  materials 
and  planning  the  work  for  more  detailed  investigations. 
Moreover,  a  thorough  understanding  of  the  social  evolution 
of  any  people  must  rest  upon  the  broader  experience  of  man- 
kind. Accordingly,  in  Part  I  the  attempt  is  made  to  present 
a  comprehensive  and  systematic  analysis  of  the  literature  and 
the  theories  of  primitive  matrimonial  institutions. 

Preliminary  reference  to  another  portion  of  the  book  may 
perhaps  be  permitted.     The  anxious  attention  of  the  legal 


viii  Peeface 

and  social  reformer  is  being  especially  directed  to  the  char- 
acter of  our  state  legislation  regarding  marriage  and  divorce. 
To  him,  therefore,  it  is  hoped,  the  last  three  chapters  may 
prove  helpful.  Summaries  of  the  statutes  as  they  stood  at 
particular  dates  have  indeed  appeared.  The  digest  con- 
tained in  the  government  Report  is  of  great  value  for  the 
time  of  its  compilation  ;  but  no  attempt  seems  ever  to  have 
been  made  to  provide  a  systematic  historical  record.  In 
these  chapters — the  result  of  several  years'  labor — the  laws 
of  all  the  states  and  territories  enacted  since  the  Kevolution 
have  been  analyzed  with  some  regard  for  details.  No  pains 
have  been  spared  to  gain  accuracy ;  yet  it  would  be  rash  to 
expect  that  the  discussion  is  entirely  free  from  error  or  over- 
sight. 

During  the  years  devoted  to  this  investigation  I  have 
profited  by  the  generous  assistance  of  many  friends.  They 
have  aided  me  through  references,  information,  copying, 
verifying,  and  in  other  ways.  To  all  these  I  desire  to  convey 
my  grateful  thanks.  In  a  few  instances  it  is  fitting  that 
individual  acknowledgment  should  be  made.  To  Professor 
William  Henry  Hudson,  of  London,  I  am  indebted  for  the 
examination  of  several  rare  books  in  the  library  of  the  British 
Museum.  Bibliographical  help  has  also  been  given  by 
Professor  Charles  Richmond  Henderson,  of  the  University 
of  Chicago.  Special  researches  on  my  behalf  have  been 
conducted  by  Mr.  Royall  C.  Victor  and  by  Miss  Lucile 
Eaves,  head  resident  of  the  South  Park  Settlement,  San 
Francisco.  I  have  had  the  advantage  of  the  expert  aid  of 
Mr.  David  M.  Matteson  in  examining  the  manuscript  records 
of  the  colonial  and  provincial  courts  of  SuflPolk  and  Middlesex 
counties,  Massachusetts.  To  Professor  Nathan  Abbott,  of 
Stanford  University,  Mr.  James  H.  Deering,  of  the  San 
Francisco  Law  Library,  and  Rev.  Samuel  W.  Dike,  secretary 
of  the  National  League  for  the  Protection  of  the  Family,  I 


Preface  ix 

am  under  obligations  for  information  and  suggestions. 
Special  thanks  are  due  to  Professor  Charles  Gross,  of  Har- 
vard, for  encouragement  in  the  work  and  various  kind  offices ; 
as  also  to  Mr.  W.  C.  Lane  and  Mr.  T.  J.  Kieman,  of  the  Har- 
vard Library,  for  granting  the  most  liberal  use  of  the 
materials  in  their  charge. 

Finally  I  can  but  poorly  express  the  gratitude  which  I 
owe  to  my  wife,  whose  patient  hand,  faithful  criticism,  and 
wise  counsel  have  never  failed. 

Chicago,  March  19, 1904. 


ANALYTICAL   TABLE   OF   CONTENTS 


VOLUME  ONE 
PART  I 

ANALYSIS  OP  THE  LITERATURE  AND   THE   THEORIES  OF   PRIMI- 
TIVE   MATRIMONIAL    INSTITUTIONS 

PAGES 

Chapter  I.    The  Patbiarchal  Theory    -        -        -        -  3-32 

I.  Statement  of  the  Theory 9-13 

II.  Criticism  of  the  Theory  by  Spencer  and  McLennan  -  14-17 

ni.  The  Theory  in  the  Light  of  Recent  Research  -        -  18-32 

Chapter  II.    Theory  of  the  Horde  and  Mother-Right  33-89 

I.  Bachofen  and  His  Disciples 39-65 

II.  Morgan's  Constructive  Theory          .        .        .        .  65-76 

III.  McLennan's  Constructive  Theory    -        -        .        -  77-89 

Chapter  III.    Theory    of    the    Original    Pairing    or 

Monogamous  Family 89-151 

I.  The  Problem  of  Promiscuity 90-110 

II.  The  Problem  of  Mother-Right          .        -        -        .  110-117 

III.  The  Problem  of  Exogamy      ,—        ....  117-132 

IV.  The  Problem  of  the  Successive  Forms  of  the  Family  132-151 

Chapter  IV.    Rise  of  the  Marriage  Contract     -        -  152-223 

I.  Wife-Capture  and  the  Symbol  of  Rape    -        -        -  156-179 
^i.  Wife-Purchase  and  Its  Survival   in  the  Marriage 

^    Ceremony 179-201 

III.  The  Antiquity  of  Self-Betrothal  or  Free  Marriage  -  201-210 

IV.  Primitive  Free  Marriage  Surviving  with  Purchase, 

and  the  Decay  of  the  Purchase-Contract          -        -  210-223 

Chapter  V.    Early  History  of  Divorce        -        -        -  224-250 

I.  The  Right  of  Divorce       - 224-240 

II.  The  Form  of  Divorce 240-241 

III.  The  Legal  Effects  of  Divorce  -----  241-247 

IV.  Frequency  of  Divorce       ------  247-250 

xi 


Table  of  Contents 


PART  II 
MATRIMONIAL    INSTITUTIONS    IN    ENGLAND 

^^■''^  PAGES 

Chapter  VI.    Old  English  Wife-Pueohase  Yields  to 

Free  Marriage 253-286 

I.  The  Primitive  Keal  Contract  of  Sale  and  Its  Modi- 

— '      fications -    258-276 

II.  Rise  of  Free  Marriage :  ^^i-Bevoeddung  and  Self- 

Gifta 276-286 

Chapter  VII.    Rise  of  Eoolesiastioal  Marriage:   The 

Church  Accepts  the  Lay  Contract  and  Ceremonial    287-320 
I.  The  Primitive  Christian  Benediction,   the  Bride- 
Mass,  and  the  Celebration  ad  Ostium  Ecclesiae      -    291-308 
II.  The  Priest  Supersedes  the  Chosen  Guardian,  and 

Sponsalia  per  Verba  de  Praesenti  Are  Valid  -    308-320 

Chapter  VIII.     Rise  of  Ecclesiasticjal  Marriage  :  The 
Church   Develops    and   Administers   Matrimonial 

Law 321-363 

I.  The  Early  Christian  Doctrine  and  the  Rise  of  the 

Canonical  Theory 324-340 

II.  Clandestine  Marriages  the  Fruit  of  the  Canonical 

Theory      ---------    340-349 

III.  The  Evils  of  the  Spiritual  Jurisdiction    -        -        -    350-359 

IV.  Publicity  Sought  through  Banns  and  Registration    359-363 
Chapter  IX.    The  Protestant  Conception  of  Marriage    364-^03 

I.  As  to  the  Form  of  Marriage     -----  370-386 

II.  As  to  the  Nature  of  Marriage 386-399 

III.  Child-Marriages  in  the  Age  of  Elizabeth  -        -        -  399-403 

Chapter  X.    Rise  of  Civil  Marriage     -        -        -        -  404-473 

I.  Cromwell's  Civil  Marriage  Act,  1653        -        -        -  408^35 

II.  Fleet  Marriages  and  the  Hardwicke  Act,  1753         -  435-460 

m.  The  Present  English  Law        .        -        .        .        .  460-473 

VOLUME  TWO 
PART  11  — Continued 
Chapter  XI.    History  of  Separation  and  Divorce  under 

English  and  Eccleslastical  Law   -        -         -        -        3-117 
I.  The  Early  Christian  Doctrine  and  the  Theory  of 

the  Canon  Law -        11-60 


Table  of  Contents 


Xlll 


III. 


PAGES 

a)  Historical  Elements  of  the  Christian  Teaching  -  11-23 

h)  Views  of  the  Early  Fathers         .        -        .        .  23-28 

c)  The  Legislation  of  the  Christian  Emperors        -  28-33 

d)  The  Compromise  with  German  Custom      -        -  33-46 

e)  Final  Settlement  of  the  Christian  Doctrine  in 

the  Canon  Law 47-60 

The  Protestant  Doctrine  of  Divorce          -        -        -  60-85 
a)  Opinions  of  Luther  and  the  Continental  Re- 
formers          60-71 

h)  Opinions  of  the  English  Reformers     -        -        -  71-85 

Law  and  Theory  during  Three  Centuries         -        -  85-117 

a)  The  Views  of  Milton 85-92 

h)  Void  and  Voidable  Contracts      -        -        -        -  92-102 

c)  Parliamentary  Divorce 102-109 

d)  The  Present  English  Law  -----  109-117 


PAKT  III 


MATRIMONIAL    INSTITUTIONS    IN    THE    UNITED    STATES 

Chapter  XII.     Obligatory  Civil  Marriage  in  the  New 

England  Colonies -  121-226 

I.  The  Magistrate  Supersedes  the  Priest  at  the  Nuptials  125-143 

II.  Banns,  Consent,  and  Registration    -        -        -        -  143-151 

III.  Courtship,  Proposals,  and  Government  of  Single 
Persons     ---------  152-169 

IV.  Pre-contracts,  Bundling,  and  Sexual  Immorality    -     169-200 
V.  Breach  of  Promise  and  Marriage  Portions       -        -    200-209 

VI.  SeU-Gifta,  Clandestine  Contracts,  and  Forbidden 

Degrees    -        - -    209-215 

VII.  Slave-Marriages        -        -        -        -        -        -        -    215-226 

Chapter  XIII.     Ecclesiastical  Rites  and  the.  Rise  of 

Civil  Marriage  in  the  Southern  Colonies  -         -    227-263 
I.  The  Religious  Ceremony  and  Lay  Administration 

in  Virginia 228-239 

II.  Optional  Civil  Marriage  and  the  Rise  of  Obligatory 

Religious  Celebration  in  Maryland  -        -        -        -    239-247 
III.  The  Struggle  for  Civil  Marriage  and  Free  Religious 

Celebration  in  North  Carolina  ...        -    247-259 


XIV 


Table  of  Contents 


IV.  Episcopal  Rites  by  Law  and  Free  Civil  or  Religiovis 
Celebration    by  Custom    in    South    Carolina  and 

Georgia    -        -        - 260-263 

Chapter  XIV.    Optional  Civil  or  Ecclesiastical  Mar- 
riage IN  THE  Middle  Colonies       .        -        -        -  264-327 
I.  New  York         --------  266-308 

a)  Law  and  Custom  in  New  Netherland  -        -  267-284 

b)  Law  and  Custom  under  the  Duke  of  York  -  284-296 

c)  Law  and  Custom  in  the  Royal  Province     -        -  296-308 
II.  New  Jersey,  Pennsylvania,  and  Delaware        -        -  308-327 

a)  Law  and  Custom  in  New  Jersey  -        -        -  308-315 

b)  Law  and  Custom  in  Pennsylvania  and  Delaware  315-327 

Chapter  XV.    Divorce  in  the  American  Colonies        -  328-387 

I.  In  New  England      -------  330-366 

a)  Massachusetts -        -  330-348 

b)  New  Hampshire,  Plymouth,  and  New  Haven     -  348-353 

c)  Connecticut         -        - 353-360 

d)  Rhode  Island 360-366 

II.  English  Divorce  Laws  in  Abeyance  in  the  Southern 
Colonies    ---------  366-376 

Arbitration  and  Divorce  in  the  Middle  Colonies       -  376-387 

Chapter  XVI.     A  Century  and  a  Quarter  of  Marriage 

Legislation  in  the  United  States,  1776-1903       -  388-497 

I.  The  New  England  States         -----  388-408 

a)  Solemnization -  389-395 

6)  Forbidden  Degrees:    Void  and  Voidable  Mar- 
riages ---------  395-401 

c)  Certificate  and  Record         -        -        -        -        -  401^08 

II.  The  Southern  and  Southwestern  States  -        -         -  408-452 

a)  Solemnization 409-427 

b)  Forbidden  Degrees:    Void  and   Voidable  Mar- 
riages   -        -        -        -  427-i41 

c)  Certificate  and  Record  -----  441-452 

III.  The  Middle  and  the  Western  States         -         -         -  452-497 

a)  Solemnization      -------  452-470 

b)  Forbidden  Degrees:    Void   and   Voidable  Mar- 
riages ---------  470_481 

c)  Certificate  and  Record         -----  481-497 


Table  op  Contents 


XV 


VOLUME  THREE 
PART  III  — Continued 

PAGES 

Chapter  XVII.     A  Century  and  a  Quarter  of  Divorce 

Legislation  in  the  United  States         -        -        -  3-160 

I.  The  New  England  States         -----  a_30 

a)  Jurisdiction :  Causes  and  Kinds  of  Divorce         -  4^18 

b)  Remarriage,  Residence,  Notice,  and  Miscellane- 
ous Provisions     -        -        -        -        -        -        -  18-28 

c)  Alimony,  Property,  and  Custody  of  Children     -  28-30 
II.  The  Southern  and  Southwestern  States   -        -        -  31-95 

a)  Legislative  Divorce     ------  31-50 

6)  Judicial  Divorce:  Jurisdiction,  Kinds,  and  Causes  50-79 

c)  Remarriage,  Residence,  Notice,  and  Miscellane- 
ous Provisions     -------  79-90 

d)  Alimony,  Property,  and  Custody  of  Children     -  90-95 
HI.  The  Middle  and  the  Western  States        -        -        -  96-160 

a)  Legislative  Divorce 96-101 

b)  Judicial  Divorce:  Jurisdiction,  Kinds,  and  Causes  101-144 

c)  Remarriage,  Residence,  Notice,  and  Miscellane- 
ous Provisions 145-160 

Chapter  XVIII.   Problems  of  Marriage  and  the  Family  161-259 

I.  The  Function  of  Legislation 167-223 

a)  The  Statutes  and  the  Common -Law  Marriage    -  170-185 

b)  Resulting  Character  of  Matrimonial  Legislation  185-203 

c)  Resulting  Character  of  Divorce  Legislation        -  203-223 
II.  The  Function  of  Education 223-259 

Bibliographical  Index -  263-402 

I.  Early  History  of  Matrimonial  Institutions       -        -  264-291 
II.  Matrimonial  Institutions  in  England  and  under 

Germanic  and  Canon  Law        -----  291-339 

III.  Matrimonial  Institutions  in  the  United  States         -  339-355 

a)  Manuscripts -  339-340 

6)  Books  and  Articles      ------  340-355 

IV.  Problems  of  Marriage  and  the  Family    -        -        -  355-396 
V.  Session  Laws  and  Collected  Statutes  Used  in  Chap- 
ters XVI-XVIII       - 396-402 

Case  Index 405-411 

Subject  Index -        -  413-449 


PART  I 

ANALYSIS  OF  THE  LITERATURE  AND  THE  THEORIES 
OF  PRIMITIVE  MATRIMONIAL  INSTITUTIONS 


CHAPTER  I 

THE  PATElAKCilAi^  THEORY 
22  3  2>S 

[Bibliographical  Note  I. —  The  modern  history  of  the  patriarchal 
theory  begins  with  Filmer's  Patriarchia  (London,  1680),  in  which  the 
author  finds  in  the  Hebrew  family  a  justification  of  the  "divine  pre- 
rogative" of  kings;  and  the  trenchant  reply  of  Locke  in  The  Two 
Treatises  on  Civil  Government  (London,  1690),  reprinted  with  Filmer's 
work  in  the  ninth  volume  of  Morley's  Universal  Library.  But  the 
theory  is  especially  associated  with  the  name  of  Sir  Henry  Maine.  His 
Ancient  Law  (New  York,  1861),  aside  from  its  leading  hypothesis,  is 
one  of  the  most  suggestive  books  of  the  century.  It  was  followed  by 
the  Early  History  of  Institutions  (New  York,  1875);  the  Village  Com- 
munities (New  York,  1876);  and  Early  Law  and  Custom  (New  York, 
1883).  In  this  last  work  he  contributes  supplementary  chapters  on 
such  topics  as  "  Ancestor- Worship  "  and  "  East  European  House  Com- 
munities," and  he  replies  to  his  critics.  Maine  is  criticised  by  Spencer, 
Principles  of  Sociology  (New  York,  1879),  Vol.  I,  Part  III,  chap,  ix;  and 
by  McLennan,  Patriarchal  Theory  (London,  1885),  who,  on  the  nega- 
tive side,  is  fairly  successful  in  confuting  his  adversary.  Hearn's  Aryan 
Household  (London,  1879)  and  the  Ancient  City  (Boston,  1877)  of  Fustel 
de  Coulanges  take  practically  the  same  view  of  primitive  society  as 

V^   Maine,  while  particularly  emphasizing  ancestor- worship  and  the  genea- 

Ij)    logical  organization. 

"^  For  the  early  Aryans  and  the  Hindus  see  Zimmer's  Alt-indisches 

(^  Leben  (Berlin,  1879);  Delbruck's  Die  indogermanischen  Verwandt- 
I    schaftsnamen  (Leipzig,   1885) ;    Schrader's  Sprachvergleichung  und 

y  Urgeschichte  (Jena,  1883),  or  the  English  translation  by  Jevons  (Lon- 
don, 1890);  Zmigrodski's  Die  Mutter  bei  den  Volkern  des  arischen 
Stammes  (Munich,  1886);  and  especially  Leist's  epoch-making  works, 
Graeco-italische  Rechtsgeschichte  (Jena,  1884)  and  the  Alt-arisches  Jus 
Gentium  (Jena,  1889).  Of  first-rate  value  also  are  the  Rechtshisto- 
rische  und  rechtsvergleichende  Forschungen  (Part  III,  on  Indisches 
Ehe-  und  Familienrecht)  and  the  other  papers  of  the  indefatigable 
Kohler.  Of  these  the  following  are  particularly  interesting  in  this 
connection,  all  found  in  the  Zeitschrift fiXr  vergleichende  Rechtswissen- 
schaft:  "Rechtsverhaltnisse  auf  dem  ostind.  Archipel  u.  den  westl. 
Karolinen,"  ZVR.,  VI,  344-50;  "Gewohnheitsrechte  des  Pendschabs," 
ibid.,  VII,  161-239;  "Indische  Gewohnheitsrechte,"  ibid.,  VIII,  89-147, 

3 


Matrimonial  Institutions 


262-73;  "  Gewohnheitsrechte  von  Bengalen,"  ibid.,  IX,  321-60;  "Ge 
wohnheitsrechte  der  Provinz  Bombay,"  ibid.,  X,  64-142,  161-88 
"Gewohnheitsrechte  der  ind.  Nordwestprovinzen,"  ibid.,  XI,  161-95 
and,  for  comparison,  "  Die  lonsage  und  Vaterrecht,"  ibid.,  V,  407-14 
"Studien  uber  kunstliche  Verwandtschaft,"  ibid.,  V,  415-40;  and  "Das 
Recht  der  Armenier,"  ibid.,  VII,  385-436.  As  in  the  last-named  paper, 
the  influence  of  Roman  law  may  be  traced  in  M^gavorian,  Etude  ethno- 
graphique  et  juridique  sur  la  famille  et  le  viariage  arm^niens  (Paris, 
1894),  Hass,  "  Die  Heirathsgebrauche  der  alten  Inder  nach  den  Grihy- 
asatra,"  in  Weber's  Indische  Studien,  V,  267-412  (Berlin,  1862),  reveals 
in  an  admirable  way  the  religious  spirit  pervading  the  ancient  Hindu 
matrimonial  life.  This  study  suggested  the  excellent  monograph  of 
Weber,  "Vedische  Hochzeitsspruche,"  ibid.,  V,  177-266;  while  the  con- 
clusions of  both  Haas  and  Weber  are  ably  supported,  with  the  aid  of 
additional  sources,  by  the  more  elaborate  paper  of  Winternitz,  "  Das 
altindische  Hochzeitsrituell,"  in  Denkschriften  der  kais.  Akad.  d.  Wiss., 
phil.-hist.  Klasse,  XL,  1-113  (Vienna,  1892).  In  this  connection,  for 
comparison,  may  be  read  Mackenzie,  "An  Account  of  the  Marriage 
Ceremonies  of  the  Hindus  and  Mahommedans  as  Practised  in  the 
Southern  Peninsula  of  India,"  in  Transactions  of  the  Royal  Asiatic 
Society,  III  (London,  1835);  and  Lushington,  "On  the  Marriage  Rites 
and  Usages  of  the  Jats  of  Bharatpur,"  in  Journal  of  the  Asiatic  Society 
of  Bengal,  II,  273-97  (Calcutta,  1833).  Especially  important  are  Bern- 
hoft's  "Die  Grundlagen  der  Rechtsentwicklung  bei  den  indogerma- 
nischen  Volkern,"  in  ZVR.,  II,  253-328;  his  "  Altindisches  Familien- 
organisation,"  ibid.,  IX,  1-45;  and  his  "Das  Gesetz  von  Gortyn,"  ibid., 
VI,  281-304,  430-40.  A  popular,  but  in  the  main  uncritical,  book  is 
Clarisse  Bader's  La  femme  dans  VInde  antique  (2d  ed.,  Paris,  1867). 
Similar  in  plan  and  treatment  are  her  La  femtne  biblique  (new  ed., 
Paris,  1873);  La  femme  grecque  (2d  ed.,  Paris,  1873);  and  La  femme 
romaine  (2d  ed.,  Paris,  1877).  A  strong  defense  of  the  dignified  posi- 
tion of  the  ancient  Indie  woman,  based  on  the  sources,  may  be  found 
in  JacoUiot's  La  femme  dans  VInde  (Paris,  1877);  and  Mary  Frances 
Billington  is  a  vigorous  champion  of  the  social  status  of  modern 
Woman  in  India  (London,  1895).  See  also  Pizzi,  "  Les  coutumes  nup- 
tiales  aux  temps  h^roiques  de  I'lran,"  in  La  Museon,  II,  3  (1883);  Vidy- 
asagar.  On  Widow-Marriages  among  the  Hindus  (Calcutta,  1855);  and 
Schlagintweit,  "  Die  Hindu-Wittwe  in  Indien,"  in  Globus,  XLIII  (1883). 
Among  the  best  technical  writings  are  Mayne's  Hindu  Law  and  Usage 
(Madras  and  London,  1888);  Jolly's  Hindu  Law  of  Partition  (Calcutta, 
1885);  his  Rechtliche  Stellung  der  Frauen  bei  den  alten  Indern 
(Munich,  1876);  Tupper's  Punjab  Customary  Law  (Calcutta,  1881);  and 
Gooroodass's  "  The  Hindu  Law  of  Marriage  and  Stridahn,"  in  Tagore 
Law  Lectures,  1878  (Calcutta,  1879).    Max  MuUer's  series  of  Sacred 


The  Patriarchal  Theory 


Books  contains  Apastamba,  Gautama,  Visnu,  and  the  other  Sutras,  as 
well  as  the  later  versified  law-books  of  Manu  and  Yajuavalkya,  with 
other  sources  of  ancient  Indie  custom.  Burnell  and  Hopkins's  Manu 
(London,  1891)  is  an  excellent  edition;  and  Jolly  has  a  German  transla- 
tion of  Books  VIII  and  IX  in  ZVB.,  Ill,  232-83;  IV,  321-61.  For  each 
important  point  these  sources  are  thoroughly  collated  in  the  writings 
of  Kohler,  Leist,  and  Jolly,  above  referred  to. 

For  the  Slavs,  Krauss's  Sitte  und  Branch  der  Sildslaven  (Vienna, 
1885)  is  the  most  valuable  treatise.  See  also  Turner,  Slavisches  Fami- 
lienrecht  (Strassburg,  1874) ;  and  Kovalevsky's  Modern  Customs  and 
Ancient  Laws  of  Russia  (London,  1891),  in  which  the  author  criticises 
and  corrects  Sir  Henry  Maine  on  important  points.  For  Greece,  in 
addition  to  Leist's  works  above  mentioned,  see  the  paper  of  Campaux, 
Du  mariage  a  AtMnes  (Paris,  1867);  that  of  Moy,  "La  famille  dans 
Homere,"  in  Revue  des  cours  litt4raires,  8  mars  186^  Stegeren,  De 
eonditione  civili  feminarum  atheniensium  (Zwallae,  1839);  Ouvr^, 
Observations  sur  le  regime  matrimonial  au  temps  d'Homhre  (Paris, 
1886);  Lasaulx,  Zur  Geschichte  und  Philosophic  der  Ehe  bei  den 
Griechen  (Munich,  1852);  especially  Hruza's  Die  Ehebegrundung  nach 
attischem  Rechte  (Erlangen  and  Leipzig,  1892);  and  his  Polygamic  und 
Pellikat  nach  griechischem  Rechte  (Erlangen  and  Leipzig,  189'4). 

On  the  matrimonial  institutions  of  the  Romans  consult  Marquardt's 
Privatleben ;  Lange's  Romische  Alterthiimer ;  Smith's  Dictionary  of 
Greek  and  Roman  Antiquities ;  Miiller's  Handbuch ;  Bernhof t's  Staat 
und  Recht  der  rom.  K6nigsze.it  (Stuttgart,  1882);  Karlowa's  Die  For- 
men  der  rom.  Ehe  und  Manus  (Bonn,  1868);  Rossbach's  Die  rom.  Ehe 
(Stuttgart,  1853);  his  Romische  Hochzeits-  und  Ehedenkmdler  (Leipzig, 
1871);  Laband's  "Rechtliche  Stellung  der  Frauen  im  altrom.  und  ger- 
manischen  Recht,"  in  Zeitschrift  fur  Volkerpsychologie,  III  (Berlin, 
1865);  and  Bouchez-Leclercq's  Manuel  des  inst.  romaines  (Paris,  1886). 
From  the  mass  of  writings  which  are  of  service  for  this  and  the  four  sub- 
sequent chapters  may  also  be  mentioned  Brissonius,  De  ritu  nuptiarum 
(Paris,  1564);  his  Dejure  connubiorum  (Paris,  1564);  Hotman,  De  veteri 
ritu  nuptiarum  observatio ;  his  De  sponsalibus ;  his  De  ritu  nuptiarum 
etjure  matrimoniorum — all  published  and  bound  with  the  two  works  of 
Brissonius  (Leyden,  1641);  Grupen,  De  uxore  romana  (Hannover,  1727) 
Ayrer,  Dejure  connubiorum,  apud  romanos    (Gottingen,  1736);    the 
anonymous   Dei   riti   delle    antiche    nozze    romane    (Perugia,  1791) 
Maanen,  De  muliere  in  manu  et  in  tutela  (Lugd.  Bat.,  1823);  Schultz 
De  jure  succedendi  feminarum  apud  romanos  (Trajecti  ad  Rhenum 
1826);  Chamblain,  De  la  puissance  paternelle  chez  les  romains  (Paris 
1829);  Eggers,  Wesen  und  EigenthUmlichkeiten  der  altrom.  Ehe  mit 
Manus   (Altona,  1833);    Mahlmann,  De   m.atrimonii   veterum  roma- 
norum  ineundi  (Halle,  1845);  Hase,  De  manu  juris  romani  (Halle,  1847); 


6  Matrimonial  Institutions 

Gerlach,  De  romanorum  connubio  (Halle,  1851);  Dubief,  Qualis 
fuerit  familia  romana  tempore  Plauti  (Molini,  1859);  Pages,  LafamiUe 
romaine  (Toulouse,  1892);  Louise,  Du  s4natus-consulte  velUien  et  de 
VincapaciU  de  lafemme  marine  (Chateau-Thierry,  1873);  Bourdin,  De  la 
condition  de  la  mire  en  droit  romain  et  en  droit  frangais  (Paris,  1881); 
Salomon,  Du  m,ariage  du  droit  des  gens  et  en  g^niral  des  mariages 
sans  connubium  (Paris,  1889);  Desminis,  Die  Eheschenkung  nach 
rom.  und  insbesondere  nach  byzantinischem  Reeht  (Athens,  1897);  and 
Ciccotti.  Donne  e  politica  negli  ultimi  anni  delta  republica  romana 
(Milan,  1895).  The  criticisms  of  Kuntze,  Excurse  uber  rom.  Recht  (2d 
ed.,  Leipzig,  1880),  and  Esmein,  Melanges  d'histoire  du  droit  et  de 
critique  (Paris,  1886),  are  of  great  value  on  various  important  questions. 
Compare  also  Couch,  "Woman  in  Early  Roman  Law,"  in  Harvard  Law 
Review,  VIII  (Cambridge,  1895);  Picot,  Du  mariage  romain,  chrStien, et 
frangais  (Paris,  1849);  Monlezun,  Condition  civile  de  lafemme  marine  a 
Rome  et  en  France  (Paris,  1878);  Tardieu,  De  la  puissance paternelle  en 
droit  romain  et  en  droit  frangais  (Paris,  1875);  and  Cornil,  "Contribu- 
tion k  r^tude  de  la  patria  potestas,"  in  Nouv.  rev.  hist,  de  droit,  XXI, 
416-85  (Paris,  1897),  Gide's  excellent  Etude  sur  la  condition  privie 
de  lafemme  (2d  ed.,  Paris,  1885)  deals  with  the  laws  of  Greece,  Rome, 
and  other  nations.  Poste's  edition  of  Gaius's  Institutionum  juris 
civilis  commentarii  quatuor  (Oxford,  1875)  is  an  indispensable  source; 
and  among  legal  treatises  are  particularly  to  be  commended  Muir- 
head's  Introduction  to  the  Private  Law  of  Rome  (Edinburgh,  1886); 
Puchta's  Institutionen ;  Moyle's  Institutionum  Libri  (Oxford,  1890); 
Rein,  Privatrecht  (Leipzig,  1836);  and  especially  Sohm's  Institutes 
(Oxford,  1892),  by  far  the  best  work  on  the  subject  for  historical  pur- 
poses, showing  the  rare  insight,  clearness  of  analysis,  and  vigorous 
style  peculiar  to  the  author.  Most  readers  will  find  the  short  Intro- 
duction of  Hadley  and  the  excellent  Outlines  of  Professor  Morey  suffi- 
cient. For  the  general  subject  of  marriage  and  the  family  the  Zeit- 
schriftfiir  vergleichende  Rechtswissenchaft  (Stuttgart,  1878-96)  is  indis- 
pensable; while  the  Kritische  Vierteljahresschrift  filr  Gesetzgebung 
und  Rechtsioissenschaft  and  the  Zeitschrift  filr  Ethnologic  are  also  of 
constant  service. 

For  the  literature  of  Arabian  and  Hebrew  matrimonial  institutions, 
respectively,  see  Bibliographical  Notes  II  and  IV. 

The  student  who  has  not  yet  seriously  attacked  the  literature 
of  the  subject  will  do  well  to  begin  with  the  following:  Tylor,  "On  a 
Method  of  Investigating  the  Development  of  Institutions,  Applied  to 
Laws  of  Marriage  and  Descent,"  in  Journal  of  Anth.  Inst.,  XVIII, 
No.  3;  Bernhoft's  "  Zur  Geschichte  des  europaischen  Familienrechts," 
in  ZVR.,  VIII,  1-27,  161-221,  384-405;  in  connection  with  his  "Princi- 
pien  des  europaischen  Familienrechts,"  ibid.,  IX,  392-444;  Friedrichs, 


The  Patriarchal  Theory 


"Familien-Stufen  und  Eheformen,"  ibid.,  X,  189-281;  the  first  two 
chapters  of  Posada's  TMories  modernes  (Paris,  1896);  and  the  first 
three  chapters  of  Botsford's  Athenian  Constitution  (Boston,  1893),  one 
of  the  ablest  contributions  to  comparative  institutions.  This  is  Bup- 
plemented  by  H.  E,  Seebohm's  Structure  of  Greek  Tribal  Society 
(London  and  New  York,  1895).  For  summaries  of  the  results  of  investi- 
gations, from  different  points  of  view,  Delbriick's  "Das  Mutterrecht  bei 
den  Indogermanen,"  in  Preussische  Jahrbiicher,  XCVII,  14-27  (Berlin, 
1895),  may  be  compared  with  Dargun's  Mutterrecht  und  Vaterrecht  (Leip- 
zig, 1892),  containing  a  criticism  of  the  views  of  many  recent  writers.] 

It  is  the  primary  purpose  of  this  book  to  trace  the 
development  of  the  family  and  marriage  in  the  "three 
homes"  of  the  English  race.  An  attempt  is  made  to 
describe  the  mechanism  provided  by  the  state  for  the  admin- 
istration of  matrimonial  law;  and  to  appreciate  the  impor- 
tance of  some  of  the  many  problems  centering  in  the  family 
as  a  social  institution.  Necessarily  a  theme  so  broad  may 
here  be  treated  only  in  outline.  Yet  in  the  outset  it  is  the 
limitations  of  the  subject  which  require  to  be  most  carefully 
noted.  It  is  but  a  part  of  the  wide  field  of  family  history 
which  receives  special  attention.  We  are  closely  concerned 
with  the  forms  of  celebration  and  divorce  as  they  existed 
among  our  Teutonic  ancestors,  and  as  they  have  since  been 
molded  by  custom  and  legislation  in  England  and  the  United 
States.  Only  in  a  secondary  degree  are  we  interested  in  the 
intricate  law  of  the  domestic  relations.  Except  incidentally, 
we  are  not  now  called  upon  to  consider  the  property  rights 
of  husband  and  wife,  the  laws  of  guardian  and  ward,  or  the 
rules  of  kinship  and  succession. 

More  pertinent  is  the  general  question  of  the  genesis 
of    human  marriage  and    the    human  family.'     It  will   be 

1  "The  expression  'human  marriage'  will  probably  be  regarded  by  most  people 
as  an  improper  tautology.  But,  as  we  shall  see,  marriage,  in  the  natural-history 
sense  of  the  term,  does  not  belong  exclusively  to  our  own  species.  No  more  funda- 
mental difiPerence  between  man  and  other  animals  should  be  implied  in  sociological 
than  in  biological  and  psychological  terminology.  Arbitrary  classifications  do 
science  much  injury." — Westeemaeck,  History  of  Human  Marriage.,  6.  In  like  spirit, 
Hellwald  entitles  his  book  Die  menschliche  Familie. 


8  Matrimonial  Institutions 

impossible,  of  course,  to  examine  independently  the  many 
difficult  problems  which  have  arisen  in  this  connection. 
Even  the  specialist  may  find  it  hard  to  trace  a  clear  way 
through  the  bewildering  maze  of  existing  theory  and  sub- 
theory.  It  seems  desirable,  therefore,  by  way  of  introduc- 
tion, to  present  as  clearly  and  briefly  as  may  be  the  more 
salient  results  of  recent  investigation.  Marriage  is  a  prod- 
uct of  social  experience.  Hence  to  understand  its  modern 
aspects  it  is  needful  to  appeal  to  the  general  sociological 
facts  surrounding  its  origin  and  its  early  history  among 
the  races  of  mankind.  It  is  necessary  to  get  our  bearings. 
At  the  dawn  of  history  the  Teutonic  family  was  essentially 
monogamic,  originating  in  a  contractual  relation.  What, 
then,  do  we  know  as  to  the  origin  of  the  monogamic  family 
and  regarding  the  conditions  under  which  marriage  by  con- 
tract arose?  Part  I  will  concern  itself  with  the  solution  of 
this  question. 

The  literature'  of  pfimitive-Jiiarriage  and  the  family  is 
already  formidable ;  and,  however  contradictory  and  discour- 
aging, on  first  examination,  its  conclusions  may  appear, 
there  can  be  little  doubt  that  they  demonstrate  the  possibil- 
ities of  the  comparative  method^  in  the  domain  of  social 
institutions.  It  is  in  this  field,  indeed,  that  evolutional 
science  bids  fair  to  achieve  its  most  signal  triumph.  At  last, 
in  the  laboratory  of  science,  there  is  some  prospect  that  man 
may  come  really  to  know  himself.  On  the  other  hand,  it  is 
precisely  in  the  study  of  primi-tive  marriage  that  the  "perils 

'  A  brief  and  clear  account  of  some  of  the  more  important  works  is  given  by 
BeenhOft,  "  Zur  Geschichte  des  europaischen  Familienrechts,"  ZVB.,  VIII,  4  ff., 
384  ff.  Compare  the  criticisms  of  Spencer,  Starcke,  and  Westermarck  contained 
throughout  their  respective  treatises. 

2 For  a  proof  of  the  efficiency  with  which  the  "statistical  method"  may  be 
applied  to  anthropological  and  sociological  questions,  see  the  paper  of  De.  Tyloe 
"On  a  Method  of  Investigating  the  Development  of  Institutions,  Applied  to  Laws  of 
Marriage  and  Descent,"  Journal  of  the  Anthropolog.  Institute,  Feb.,  1889,  245-69.  Cf. 
Westeemarck,  Human  Marriage,  1-7 ;  Staecke,  Primitive  Family,  1-16;  BeenhOft, 
op.  cit.,  1-4. 


The  Patriarchal  Theory  9 

of_historical  narrative"  are  most  clearly  revealed.'  Nowhere, 
perhaps,  can  there  be  found  rasher  inference^  and  more 
sweeping  generalization  from  inadequate  data.  Too  often 
economic  and  psychological  laws  have  been  slighted;  and, 
in  a  field  where  their  careful  observance  is  so  vitally  impor- 
tant, the  fundamental  principles  of  organic  evolution — such, 
for  instance,  as  natural  selection — have  frequently  been 
ignored.^  A  vast  mass  of  interesting  facts  relating  to  man's 
social  development,  highly  important  for  him  to  know,  has 
been  disclosed.  But,  with  a  few  notable  exceptions,  the 
signal  failure  of  investigators  thus  far  has  been  the  attempt 
to  sustain  theories  of  uniform  social  progress.  The  criti- 
cism, especially,  to  which  the  writings  of  Bachofen,  Maine, 
Morgan,  and  McLennan  have  given  rise  has  greatly  weak- 
ened the  faith  of  scholars  in  the  doctrine  of  universal  stages 
of  evolution  through  which  all  mankind  has  run.* 

I.       STATEMENT  OF  THE  THEORY 

Students  of  comparative  institutions  have  generally  re- 
garded the  family  as  the  unit  or  germ  from  which  the 
higher  forms  of  social  organism  have  been  evolved.  A  Ger- 
man scholar  declares  that  among  all  the  races  of  antiquity 
"the  constitution  of  the  family  was  the  basis  and  prototype 

1  See  the  suggestive  paper  of  Winsoe,  "  The  Perils  of  Historical  Narrative," 
Atlantic  Monthly  (Sept.,  1890),  LXVI,  289-97. 

2BeenhOft,  op.cit.,  1-4,  has  noted  the  danger  of  inference,  especially  from  written 
laws,  where  there  has  been  a  mixture  of  races  and  institutions:  "  Denn  die  Rechts- 
institute  sind  eben  nicht  aus  einem  einheitlichen  Prinzip  erwachsen,  sondern  aus 
einem  Kompromiss  verschiedener  Prinzipien  entstanden,  welche  sich  gegenseitig 
einschr&nken  nnd  durchbrechen." 

3  It  is  a  merit  of  Westermarck's  book  that  he  has  "  put  particular  stress  upon 
psychological  causes  which  have  often  been  deplorably  overlooked." —  Op.  cit.,  5.  Cf. 
also  Staecke,  op.  cit.,  4. 

<"  Yet  nothing  has  been  more  fatal  to  the  Science  of  Society  than  the  habit  of 
inferring,  without  sufficient  reasons,  from  the  prevalence  of  a  custom  or  institution 
among  some  savage  peoples,  that  this  custom,  this  institution,  is  a  relic  of  a  stage  of 
development  that  the  whole  human  race  once  went  through."— Westeemaeck,  op. 
cit.,  2.    Cf.  Post,  Studien  zur  Entwicklungsgeschichte  des  Familienrechts,  1-3,  58. 


» 


10  Matrimonial  Institutions 

of  the  constitution  of  the  state.'"  The  same  theory  is  clearly 
set  forth  and  the  process  of  political  expansion  carefully 
described  by  Plato  and  also  by  Aristotle,^  who  base  it  upon 
their  own  observation  both  among  "Hellenes  and  barbari- 
ans," and  each  illustrates  it  by  reference  to  the  Cyclops  of 
Horner,^  It  is  not  wholly  improbable,  as  will  presently 
appear,  that  the  family  in  some  form  musLbe_g.ccepted  as 
the  initial  society,  possibly  among  all  the  races  of  mankind. 
At  a  very  early  ethnical  period  the  family,  so  far  as  it  implies 
great  authority,  perhaps  even  the  despotic  power  of  the 
house-father  over  his  wife  and  children,  may  often  have  been 
"patriarchal."  To  admit  this,  however,  is  very  different 
from  accepting  as  the  primordial  cell  of  social  development 
the  strictly  defined  patriarchal  family  of  Sir  Henry  Maine's 
Ancient  Law.  In  this  book,  which  made  its  appearance  in 
1861,  we  are  told  that  the  "effect  of  the  evidence  derived 
from  comparative  jurisprudence  is  to  establish  that  view  of 
the  primeval  condition  of  the  human  race  which  is  known  as 
the  Patriarchal  Theory."*  The  primitive  family  as  thus  con- 
ceived is  substantially  the  Roman  faniily^'not  in  all  respects 
as  it  actually  appears  in  the  historical  period,  but  as  it  is 
thought  that  it  must  have  been  before  the  process  of  trans- 

1  Maequaedt,  Das  Privatlehen  der  R6mer,  I,  1.  The  theory  is  also  held  by 
Bluntschli,  Theory  of  the  State,  182-89 ;  Schkadee,  Sprachvergleichung  und  Urge- 
schichte,  391-95;  Leist,  Alt-arisches  Jus  Gentium,  113;  MtJLLEE,  Handbuch  der  klass, 
Alterthumswlssenschaft,  IV,  18-20;  Gilbeet,  Handbuch  der  griech.  StaaUalter- 
thiimer,  II,  302 ;  Maine,  Village  Communities,  15  ff. ;  Ancient  Law,  118  flf. ;  Early  Law 
and  Custom,  chap,  iii;  Fustel,  de  Coulanges,  Ancient  City,  111  ff. ;  Geote,  History 
of  Greece,  I,  561 ;  ThOmsee,  Die  griech.  Staatsalterthiimer,  28  ff. 

2PLATO,  Laws,  Book  III,  680, 681 :  Jowett,  Dialogues,  IV,209 ;  AniSTOTZ,E,Politics, 
Book  I,  2  ff. :  Jowett,  I,  2  ff.    These  are  followed  by  Ciceeo,  De  Offlciis,  1, 17. 

3  "They  (the  Cyclops)  have  neither  assemblies  for  consultation  hot  themistes, 
bnt  everyone  exercises  jurisdiction  over  his  wives  and  his  children,  and  they  pay  no 
regard  to  one  another." — Odyssey,  Book  IX,  106  ff.,  as  rendered  by  Maine,  Ancient 
Law,  120.  Cf.  Odyssey,  Book  VI,  5  ff. ;  Beyant's  Trans.,  I,  Hi,  213,  216.  On  the 
themistes,  as  inspired  commands  of  the  hero-king,  handed  down  to  him  from  Zeus  by 
Themis,  see  Maine,  chap,  i ;  and  on  the  import  of  the  passage  in  Homer  compare 
ibid.,  120,  with  Feeeman,  Comparative  Politics,  379  n.  20,  and  Botsfoed,  Athenian 
Constitution,  3,  4. 

*  Ancient  Lata,  118. 


The  Patriarchal  Theory  11 

formation  and  decay  began.  It  is  a  much  more  extended 
group  than  the  modern  family,  embracing  under  the  head- 
ship of  the  eldest  valid  male  parent  all  agnatic  descendants 
and  all  persons  united  to  it  by  adoption,  as  well  as  slaves, 
clients,  and  other  dependents/  The  power  of  the  house- 
father is  most  despotic,  though  exercised  during  his  entire 
lifetime  over  the  unmarried  daughters  and  over  even  the 
married  sons  and  their  wives  and  children.  Thus  originally, 
it  is  said,  the  Roman  pater  familias  has  power  of  life  and 
death,  vita  necisqiie,  over  his  children.  He  may  sell  them 
into  slavery,  and  sons,  even  those  who  hold  the  highest 
offices  of  state,  can  originally  own  no  property.^  The  patri- 
arch is  king  and  priest  of  the  household.  As  a  sort  of 
*' corporation  sole,"  he  is  likewise  its  representative  and 
administrator;  for  the  property  is  regarded  as  a  part  of  the 
family,  and  on  the  death  of  the  house-father  the  family 
devolves  upon  the  universal  successor.*  A  characteristic 
feature  of -the  patriarchal  family  is  agnation,  or  the  system 
of  tracing  kinship  through  males  only.*  Agnatic  relation- 
ship "is  in  truth  the  connection  between  members  of  the 

1  Clients,  servants,  and  even  those  admitted  to  the  hearth  as  guests,  by  observ- 
ance of  the  proper  rites,  were  regarded  as  members  of  the  family  group  and  sharers 
in  the  sacra.  Heaen,  Aryan  Household,  73, 107  f . ;  Fustel  de  Coulanges,  Ancient 
City,  150;  Maine,  op.  cit.,  156  ff.,  185  ff.  (sacra). 

2  For  the  Roman  patria  potestas  see  Poste,  Gains,  61  £E. ;  Leist,  Graeco- 
italische  Rechtsgeschichte,  57-102;  SoHM,  Institutes,  120  ff.,356ff.,  385-95;  BeenhOft, 
ROmische  Kdnigszeit,  175  ff. ;  Puchta,  Institutionen,  II,  384  ff. ;  Moeey,  Outlines  of 
Roman  Law,  23,  24;  Scheuel,  Institutionen,  271,  272;  Kuntze,  Excurse,  570  ff. ; 
'M.pavi-E,  Ancient  Law,  123  ff.,  130  ff.,  227,  228;  Hadley,  Roman  iaw,  119ff. ;  Claek, 
Early  Roman  Law,  25;  Muiehead,  Hist.  Int.  to  the  Private  Law  of  Rome,  27  ff.,  118, 
222;  Lange,  Rdmische  Alterthiimer,  I,  112  ff. ;  Geupen,  Uxore  romana,  19  ff.,  37  ff. ; 
Badee,  La  femme  romaine,  75  ff. ;  Taedieu,  Puissance  paternelle,  5  ff. ;  Bouedin, 
Condition  de  la  rn^re,  9  ff.  On  the  power  of  the  father  to  expose  female  infants  dur- 
ing the  early  empire  see  Capes,  Age  of  the  Antonines,  19  f . 

3  Maine,  Ancient  Law,  122,  and  chap.  vi. 

*0n  the  Roman  agnation  see  Poste,  Gaius,  113  ff.;  Leist,  Graeco-italische 
Rechtsgeschichte,  64  ff. ;  Sohm,  Institutes,  124,  355  ff. ;  Puchta,  Institutionen,  II,  17  ff. ; 
^OHIjE,  Instituticmes,  1, 155, 156;  Moeey,  op.  cit.,  6,  34;  Kuntze,  Excurse,  43.5-37  {Agna- 
tionsverband) ;  Lange,  R6mische  Alterthiimer,  I,  211  ff. ;  Muiehead,  Hist.  Int.  to  the 
Private  Law  of  Rome,  43  ff.,  122  ff. ;  Hadley,  Roman  Law,  130  ff. ;  Maine,  op.  cit. ,  56 
141  ff. 


12  Matrimonial  Institutions 


family,  conceived  as  it  was  in  the  most  ancient  times.'"  Its 
foundation  is  "not  the  marriage  of  father  and  mother,  but 
the  authority  of  the  father In  truth,  in  the  primi- 
tive view,  relationship  is  exactly  limited  by  patria  potestas. 
Where  the  potestas  begins,  kinship  begins;  and  therefore 
adoptive  relatives  are  among  the  kindred.  Where  the 
potestas  ends,  kinship  ends ;  so  that  a  son  emancipated  by 
his  father  loses  all  rights  of  agnation.  And  here  we  have 
the  reason  why  the  descendants  of  females  are  outside  the 
limits  of  archaic  kinship."  Indeed  "it  is  obvious  that  the 
organization  of  primitive  societies  would  have  been  con- 
founded, if  men  had  called  themselves  relatives  of  their 
mother's  relatives."*  The  basis  of  the  patriarchal  family 
^Ab  the  patria  potestas,  but  in  its  "normal  shape"  it  has  not 
been  and  could  not  be  "generally  a  durable  institution."' 
Yet  its  former  universality  may  be  inferred  from  certain 
derivative  institutions,  such  as  the  perpetual  tutelage  of 
women,  the  guardianship  of  minors,  the  relation  of  master 
and  slave,  and  especially  from  agnation  which  is  found 
"almost  everywhere"  and  is  "as  it  were  a  mould"  retaining 
the  imprint  of  the  paternal  powers  after  they  have  ceased  to 
exist.*  Applying  this  test  chiefly,  Maine  finds  evidence  of 
the  existence  of  the  potestas  among  the  Hebrews  as  well  as 
all  the  peoples  of  the  Aryan  stock ;  and  he  believes  that  it 
would  be  hard  to  say  "  of  what  races  of  men  it  is  not  allow- 
able to  lay  down  that  the  society  in  which  they  are  united 
was  originally  organized  on  the  patriarchal  model."  * 

The  patriarchal  family  as  thus  constituted  is  the  "type 
of  an  archaic  society  in  all  the  modifications  which  it  was 
capable  of  assuming.  ">  From  it  as  in  concentric  circles 
have  been  successively  evolved  all  the  higher  forms  of  polit- 
ical organization.     Everywhere,  as  at  Rome,  "the  aggrega- 

1  Maine,  op.  cit.,  142.  2  Ibid.,  144.  3  ibid.,  141. 

*Ibid.,  141  £f.,  145  ff.  ^Ibid.,  118  flf..  passim. 


The  Patriarchal  Theory  13 

tion  of  families  forms  the  gens  or  house.  The  aggregation 
of  houses  makes  the  tribe.  The  aggregation  of  tribes  con- 
stitutes the  commonwealth." '  The  state  is  therefore  the 
result  of  the  expansion  of  its  primordial  cell;^  and  the  gen- 
ealogical organization  of  society  precedes  and  overlaps  the 
territorial.  All  these  groups,  lower  and  higher,  regard 
themselves  as  united  by  the  bond  of  kinship.  But,  as  a 
matter  of  fact,  the  kinship  is  often  assumed ;  and  the  hetero- 
geneity of  blood  is  explained  as  the  result  of  the  fiction  of 
adoption  by  which  relationship  is  artificially  extended  and 
strangers  are  admitted  to  the  sacra.  Without  this  fiction, 
says  Maine,  "I  do  not  see  how  any  one  of  the  primitive 
groups,  whatever  were  their  nature,  could  have  absorbed 
another,  or  on  what  terms  any  two  of  them  could  have  com- 
bined, except  those  of  absolute  superiority  on  one  side  and 
absolute  subjection  on  the  other."  Society  could  hardly 
have  escaped  from  its  "swaddling  clothes."^  Furthermore, 
a  strong  motive  for  the  artificial  extension  of  the  family  is 
derived  from  the  worship  of  ancestors.  The  earnest  desire 
of  the  ancients  for  male  issue  to  perpetuate  the  family  rites 
has  tended  to  foster  adoption,  and  it  probably  accounts  for 
the  levirate  and  other  similar  expedients  to  provide  an  heir.* 

1  Ibid.,  123, 124, 128.  See  the  table  of  comparative  groups  in  Scheadee,  Sprach- 
vergleichung  und  Urgeschichte,  394.  For  the  Ionic  groups  cf.  SchOmann,  Antiquities, 
317,  364;  Athenian  Constitution,  3-10;  Wachsmcth,  Hist.  Ant,  I,  342  f. ;  MCllee, 
Handbuch,  IV,  17-22 ;  Geote,  Hist,  of  Greece,  III,  52,  53.  In  general,  cf.  Fustel  db 
CotJLANGES,  Ancient  City,  141  ff. ;  Heaen,  Aryan  Household,  63  ff.,  112  ff.,  passim; 
Leist,  Graeco-italische  Bechtsgeschichte  and  Alt-arisches  Jus  Gentium. 

2  For  Feeeman's  well-known  theory  of  political  expansion  see  Comparative 
Politics,  chap.  iii. 

3  Maine,  Ancient  Law,  125  ff.,  26.  On  the  new  mode  of  adoption  in  India  see 
Mayne,  Hindu  Law  and  Usage,  88  ff. ;  Lyall,  Asiatic  Studies,  chap,  vii ;  Fort- 
nightly Review,  Jan.,  1877 ;  Jolly,  Hindu  Law  of  Partition,  144-66.  On  the  formation 
of  non-genealogical  clans  see  Heaen,  Aryan  Household,  296  ff.  Cf.  Post's  discus- 
sion of  "Ktinstliche  Verwandtschaf t "  in  Studien  zur  Entwicklungsgeschichte  des 
Familienrechts,  25-42:  Kohlee,  ZVB.,  V,  415-40. 

*  Maine,  Early  Law  and  Custom,  chaps,  iii,  iT,  viii.  For  ancestor-worship 
see  especially  Fdstel  de  Coulanges,  Ancient  City,  9-52;  Heaen,  Aryan  House- 
hold, 15  ff.,  45,  46,  59,  60;  Tayloe,  Primitive  Culture,  II  ("Animism");  Matne, 
Hindu  Law  and  Usage,  55,  438 ;  Lyall,  Asiatic  Studies,  chap,  ii ;  Dueuy,  Hist,  of 


14  Matrimonial  Institutions 


II.      CBITICISM   OF    THE    THEOEY    BY    SPENOEB 
AND  McLENNAN 

The  patriarchal  family  of  the  Ancient  Law,  whose  leading 
features  have  now  been  presented,  reappears  with  slight 
modification  in  the  later  writings  of  Sir  Henry  Maine/  It 
has  been  widely  accepted.  Yet  it  was  inevitable  that  a 
theory  which  on  its  face  appears  to  neglect  many  of  the  most 
remarkable  facts  everywhere  observable  in  the  social  life  of 
primitive  men'^  should  arouse  most  serious  doubt.  Nor  will 
it  do,  with  Starcke,^  to  excuse  the  author  on  the  ground  that 
his  conclusions  are  intended  to  be  true  only  for  the  domain 
of  the  law-books,  of  comparative  jurisprudence ;  for  obviously 
his  language  will  not  bear  that  construction. 

Herbert  Spencer  was  the  first  writer  to  subject  Maine's 
hypothesis  to  a  luminous  criticism.*  First  he  points  out  that 
Maine  has  not  been  entirely  guiltless  of  "the  lofty  contempt " 
entertained  by  civilized  peoples  for  their  barbarous  neighbors, 
which  he  himself  censures  as  a  serious  error.      For  he  "has 

Rome,  I,  206;  Zimmek,  Altindisches  Leben,  413;  Botsfobd,  Athenian  Constitution, 
24,  25,  passim,  who  holds  against  Scheadee,  Sprachvergleichung  (2d  ed.),  613-15,  that 
ancestor-worship  arose  before  the  separation  of  the  Aryan  races.  Fustel  de 
CouLANGES,  Ancient  City,  4&-51.  and  Heaen  regard  the  religious  tie  as  of  more 
importance  than  the  blood-bond  in  the  formation  of  the  gentile  groups,  Aryan 
Household,  66;  and  Leist,  Graeco-italische  Rechtsgeschichte,  7  ff.,  11  ff.,  also  makes 
the  formation  of  the  first  recognized  groups  of  relationship  depend  on  the  sacra. 
Cf.  KoHLEE,  in  ZVR.,  VI,  409-17,  for  animism;  and  for  additional  references,  a  sub- 
sequent note. 

^  Early  Hist,  of  Institutions,  64  S.,  115  S.,  217  £f.,  306-41;  Village  Communities, 
15, 16,  passim;  Early  Law  and  Custom,  chaps,  iii,  iv,  and  especially  chaps,  vii,  Tiii, 
where  adverse  criticism  is  considered.  Cf.  McLennan,  Patriarchal  Theory,  1-23, 
for  a  collation  of  the  more  important  passages  of  Maine's  writings. 

2  "The  rudiments  of  the  social  state,  so  far  as  they  are  known  to  us  at  all,  are 
known  through  testimony  of  three  sorts  —  accounts  by  contemporary  observers  of 
civilization  less  advanced  than  their  own,  the  records  which  particular  races  have 
preserved  concerning  their  primitive  history,  and  ancient  law."  Of  these  three 
sources  of  information,  Maine  regards  ancient  law  as  the  best.  He  fails  entirely  to 
appreciate  the  true  importance  of  the  first  source,  from  which,  obviously,  are 
derived  most  of  the  data  of  recent  ethnical,  anthropological,  and  sociological  inves- 
tigation, including  much  that  Maine  himself  has  presented.  Cf.  the  criticisms  by 
Spencee,  Principles  of  Sociology,  I,  713,  714 ;  Ldbbock,  Origin  of  Civilization,  6  ff. ; 
McLennan,  Patriarchal  Theoi-y,  29,  30. 

3  Primitive  Family,  94,  95.  *  Principles  of  Sociology,  I,  713-37, 


The  Patriarchal  Theory  15 

r  practically  disregarded  the  great  mass  of  the  uncivilized"  ^'^, 
peoples,  and  "ignored  the  vast  array  of  facts  they  present  at 
variance  with  his  theory."  Nor,  in  favor  of  a  primitive 
^latriarchal  state,  is  it  safe  to  assume  that  "the  implicit 
obedience  of  rude  men  to  their  parents  is  doubtless  a 
primary  fact."  For,  "though  among  lower  races,  sons,  while 
young,  may  be  subordinate,  from  lack  of  ability  to  resist; 
yet  that  they  remain  subordinate  when  they  become  men 
cannot  be  assumed  as  a  uniform,  and  therefore  as  a  primary, 
fact."  This  objection  is  sustained  by  reference  to  many 
savage  and  barbarous  tribes  among  which  parents  exercise 
little  or  no  control  over  the  children.  Again,  it  is  by  no 
means  established  that  "the  history  of  political  ideas  begins, 
in  fact,  with  the  assumption  that  kinship  in  blood  is  the  sole 
possible  ground  of  community  in  political  functions."  On 
the  contrary,  "  political  co-operation  arises  from  the  conflicts 
of  social  groups  with  one  another;'"  and  though  it  may  be 
facilitated  by  a  feeling  of  common  descent,  examples  of 
political  combination  may  be  produced  in  which  relationship 
is  not  considered.  Furthermore,  it  is  hard  to  conceive  how 
so  advanced  a  conception  of  government  as  is  implied  by  the 
patria  potestas  could  exist  in  the  "infancy  of  society;"  nor 
has  it  yet  been  proved  that  in  the  primitive  state  the  indi- 
vidual is  entirely  lost  in  the  family  group,  which  holds  all 
property  in  common.  Instances  of  "personal  monopoly"  of 
property  among  low  races  are  not  wanting.  Finally  the 
assumption  that  in  the  primordial  state  women  remained  in 
perpetual  tutelage  is  without  foundation ;  how  far  it  is  from 
the  truth  will  be  made  clear  in  future  chapters.^ 

But  the  patriarchal  theory  has  been  vigorously  attacked 
in  its  very  strongholds,  the  laws  of  the  Hebrews  and  the 

I76jd.,  716,  717,  540-53. 

2  See  below,  chap.  iv.  Me.  Spencee  also  points  out  that  Maine  does  not  take 
into  account  "stages  in  human  progress  earlier  than  the  pastoral  or  agricultural," 
—  Op.  cit.,  1,724  ff. 


16  Matrimonial  Institutions 


primitive  customs  of  the  Indo-Germanic  peoples.  The  well- 
known  polemic  of  the  late  J.  F.  McLennan  is  of  special 
interest  in  this  connection.'  Among  none  of  the  Aryan 
races,  the  Komans  only  excepted,  does  he  find  the  patria 
potestas  or  the  strict  rule  of  agnation ;  while  among  them™ 
all,  he  believes,  abundant  evidence  of  original  promiscuity 
and  of  the  maternal  system  of  kinship  is  disclosed.  Even 
the  Hebrew  Scriptures,  where  Maine  perceives  "the  chief 
lineaments"  of  the  patriarchal  society,^  so  far  from  reveal- 
ing the  patria  potestas  and  agnation,  bear  witness  to 
"beena"^  marriage  and  the  recognition  of  kinship  in 
the  female  line.*  Sir  Henry  Maine  in  this  connection 
refers  incidentally  to  Sir  Kobert  Filmer  in  whose  Patriar- 
chia  the  existence  of  the  patria  potestas  among  the  ancient 
Hebrews  is  alleged.  But,  as  McLennan  justly  observes,  "to 
those  who  have  studied  the  controversy  between  Locke  and 

1  The  Patriarchal  Theory,  edited  and  completed  by  Donald  McLennan  (Lon- 
don, 1885). 

2  Ancient  Law,  118-20, 123. 

3The  marriage  of  Jacob  with  Laban's  daughters  is  the  case  in  point.  In  "  beena  " 
marriage — the  name  given  to  the  institution  in  Ceylon  —  "the  young  husband  leaves 
the  family  of  his  birth  and  passes  into  the  family  of  his  wife,  and  to  that  he  belongs  as 
long  as  the  marriage  subsists.  The  children  born  to  him  belong,  not  to  him,  but  to  the 
family  of  their  mother.  Living  with,  he  works  for,  the  family  of  his  wife ;  and  he 
commonly  gains  his  footing  in  it  by  service.  His  marriage  involves  usually  a  change 
of  village;  nearly  always  (where  the  tribal  system  is  in  force)  a  change  of  tribe  — so 
that,  as  used  to  happen  in  New  Zealand,  he  may  be  bound  even  to  take  part  in  war 
against  those  of  his  father's  house ;  but  always  a  change  of  family.  The  man  leaves 
father  and  mother  as  completely  as,  with  the  patriarchal  family  prevailing,  a  bride 
would  do;  and  he  leaves  them  to  live  with  his  wife  and  her  family.  That  this 
accords  with  the  passage  in  Genesis  will  not  be  disputed."  Patriarchal  Theory,  42, 
43.  Nevertheless,  in  this  case  McLennan  is  certainly  mistaken.  We  have  here  to  do 
with  that  form  of  wife-purchase  called  "marriage  by  service;"  see  Lichtschein, 
Die  Ehe,  10, 11 ;  the  argument  of  Wake,  Marriage  and  Kinship,  239-44 ;  and  Feied- 
EicHS,  ''•  Familienstufen  und  Eheformen,  ZVR.,  X,  207,208.  "Beena"  marriage 
existed,  however,  among  other  Semitic  peoples  and  iKJssibly  also  among  the  Hebrews : 
Smith,  Kinship  and  Marriage,  108,  175-78,  146.  It  is  found  also  in  Africa  and  in  many 
other  places:  Wake,  op.  cit.,  149,  299-301;  McLennan,  op.  cit.,  43;  Westermarck, 
Human  Marriage,  109,  389-90;  Tyloe,  On  a  Method  of  Investigating  Institutions, 
246  ff. ;  Starcke,  op.  cit.,  78;  Hellwald,  Die  mensch.  Faniilie,  255,  266. 

*  On  the  Hebrew  family  see  Patriarchal  Theory,  35-50, 132, 133, 243-47,  273, 274  note, 
289,  306,  307,  315,  passim. 


The  Patriarchal  Theory  17 

Filmer'  it  may  seem  wonderful  that  the  truth  of  Filmer's 
main  position  could  be  thus  lightly  assumed  by  anyone,  and 
especially  by  any  lawyer,  who  had  read  Locke's  masterly 
reply  to  the  pleadings  of  his  opponent."^  The  principal 
conclusions  of  McLennan  are  sustained  in  a  striking  way, 
for  a  sister-branch  of  the  Semitic  race,  by  the  researches  of 
Wilken  and  Robertson  Smith  into  the  marriage  customs  of 
early  Arabia.^  The  ancient  Hebrews  did  not  have  agnation; 
yet  they  "traced  descent  from  the  father  for  the  purposes  of 
what  we  may  call  rank,  or  a  feeling  of  caste,''''  and  this  was 
the  source  of  paternal  power.*  The  house-father  exercised 
a  high  degree  of  authority  over  his  wives  and  children,  but 
he  can  scarcely  be  regarded  as  a  patriarch  in  the  strict  sense 
of  the  term.^ 

iFilmee's  Patriarchia,  or  the  Natural  Power  of  Kings  appeared  in  1680; 
Locke's  Two  Treatises  on  Government,  in  1690.  Both  works  are  reprinted  in  the 
ninth  number  of  Moelet's  Universal  Library. 

2  See  Patriarchal  Theory,  36  ff.,  243  ff.,  273  note,  where  a  summary  of  Locke's 
argument,  with  additional  evidence  against  the  existence  of  agnation  and  patria 
potestas  and  in  favor  of  an  original  maternal  system  among  the  Hebrews,  will  be 
found. 

^  3  Robertson  Smith,  Kinship  and  Marriage ;  Wilken,  Das  Matriarchat  bei  den 
alien  Arabern,  a  work  suggested  by  Smith's  "  Animal  Worship  and  Animal  Tribes," 
Journal  of  Philology,  IX,  75-100.  These  writers  have  found  among  these  Semitic 
tribes  the  system  of  kinship  through  the  mother  in  actual  use,  with  traces  of  polyan- 
dry, exogamy,  and  the  totem  gens;  and  Wilken  believes  that  he  finds  evidences  of 
early  promiscuity.  See  especially  KobOiEE,  Ueber  das  vorislamitische  Recht  der 
Araber,  ZVB.,  VIII,  238-61;  and  Feiedeichs,  Das  Eherecht  des  Islam,  ibid.,  VII, 
240-84,  especially  255  ff.,  who  shows  that  the  Mohammedan  house-father  exercises 
great  authority  over  his  wife,  yet  she  has  her  own  property  and  receives  a  dower.  At 
present,  relationship  in  Arabia  is  generally  counted  in  the  male  line ;  and  therefore, 
Westeemaeck,  Human  Marriage,  102,  note  4,  regards  the  conclusion  of  Smith  that 
originally  the  system  of  female  kinship  exclusively  prevailed  as  "  a  mere  hypothesis." 

*  Wake,  Marriage  and  Kinship,  244. 

5  According  to  Ewald  the  ancient  Hebrew  father  might  "  sell  his  child  to  relieve 
his  own  distress,  or  offer  it  to  a  creditor  as  a  pledge.  " —  The  Antiquities  of  Isi-ael 
(Loudon,  1876),  190;  Westeemaeck,  op.  cit.,  228;  and  the  Levitical  law  prescribes 
death  as  the  penalty  for  striking  a  parent  (Leviticus  20: 9 ;  Exodus  21 :  15, 17) ;  but  the 
penalty  could  only  be  administered  through  appeal  to  the  whole  community,  Wes- 
teemaeck, op.  cit.,  228.  Cf.  -Michaelis,  Commentaries  on  the  Laws  of  Moses,  I,  444, 
who  shows  that  the  mother,  as  well  as  the  father,  might  sometimes  choose  wives  for 
the  sons ;  while  McLennan  and  Locke  prove  that  the  position  of  the  mother  in  Israel 
was  higher  than  is  consistent  with  Roman  patriarchalism. 


18  Matrimonial  Institutions 

iii.  the  theory  in  the  light  of  recent  research 
Let  US  now  see  somewhat  more  in  detail  what  light  is 
thrown  by  recent  investigation  on  the  controversy  between 
Maine  and  McLennan.  Westermarck  has  taken  great  pains 
,to  enumerate  the  uncivilized  peoples,  chiefly  non-Aryan, 
among  whom  descent  and  usually  inheritance  follow  the 
paternal  side;^  and  he  finds  that  the  number  is  "scarcely 
less"  than  the  number  of  those  among  whom  the  female  line 
is  exclusively  recognized.  But  in  many  of  these  cases  it 
seems  probable  that  the  parental  rather  than  the  agnatic 
system  prevails,  though  the  male  line  may  take  precedence. 
In  some  instances  rank  or  authority  descends  from  father  to 
son,  while  in  other  respects  the  female  line  predominates. 
Doubtless  more  frequently  than  is  usually  imagined  a  mixed 
system  rather  than  a  strictly  paternal  or  a  strictly  maternal 
system  would  be  found  to  exist,^  As  the  result  of  his  inquiry, 
Westermarck  rejects  the  hypothesis  that  kinship  through  the 
mother  is  a  primitive  and  universal  stage,  though  he  does 
not  substitute  the  agnatic  theory  in  its  place.  Starcke,  on 
the  other  hand,  after  an  extended  examination  of  the  customs 
of  rude  races,  especially  in  America  and  Australia,  suggests 
that  the  paternal  as  a  general  rule  probably  preceded  the 
maternal  system  which  arose  only  with  the  development  of 
the  gentile  organization.^  But  Starcke's  evidence  can  scarcely 
be  accepted  as  convincing. 

Similar  difficulties  are  presented  by  the  question  of  the 
prevalence  of  the  so-called  patriarchal  power  among  non- 

1  Human  Marriage,  97-104,  notes.  Cf.  Feiedrichs,  "  Ueber  den  Urspning  des 
Matriarchats,"  ZVR.,  VIII,  371-73;  Kohlee,  ibid.,  VI,  403  (Korea) ;  VII,  373  (Papuas). 

2  Compare  Wake,  Marriage  and  Kinship,  267  ff.,  362  ff.,  382,  396  ff.;  especially 
Feiedeichs,  "Familienstufen  und  Eheformen,"  ZVB.,  X,  209-12;  and  Daegdn,  Mut- 
terrecht  und  Vaterrecht,  3,  28, 118,  who  believes  the  so-called  "  mixed  systems  "  are 
merely  a  consistent  union  of  two  entirely  different  principles  —  the  principle  of  rela- 
tionship with  the  principle  of  power  or  protection. 

3STAECKB,  op.  cif.,  26,  27  (Australia),  30  (America),  58  ff.,  101  ff.  Compare  the 
criticism  of  Hellwald,  Die  mensch.  Familie,  456  ff. ;  and  on  the  development  of  the 
patriarchal  family,  see  Lippbet,  Kulturgeschichte,  II,  505-54. 


The  Patbiabchal  Theoby  19 

Aryan  races.  Many  apparent  examples  of  despotic  authority 
can  be  enumerated ;'  but  it  is  often  hard  to  determine  whether, 
as  in  the  cases  of  the  Arabs  and  Hebrews,  we  have  to  do 
merely  with  a  high  degree  of  power  on  the  part  of  the  house- 
father or  with  a  genuine  patria  potestas  of  the  Roman  type. 
Naturally,  as  Westermarck  suggests,  the  father's  authority 
among  savages  "depends  exclusively,  or  chiefly,  upon  his 
superior  strength;"^  while  anything  like  a  patriarchal  "sys- 
tem" can  only  arise  later  under  the  influence  of  ancestor- 
worship  and  more  developed  social  and  industrial  conditions. 
Where  authority  depends  solely  or  mainly  upon  brute  force, 
it  is  evident  that  a  very  protracted  patriarchal  despotism  over 
the  sons  is  hard  to  conceive.  Moreover,  much  error  has 
doubtless  arisen  through  falsely  assuming  that  paternal 
authority  and  mother-right  are  incompatible ;  whereas  they 
may  well  coexist,  as  will  presently  appear. 

For  the  Indo-Germanic  or  Aryan  peoples  the  investiga- 
tions of  Zimmer,  Schrader,  Delbrtick,  Kohler,  and  especially 
the  researches  of  Leist,  enable  us  to  speak  with  a  higher 
degree  of  confidence,  though  only  for  the  period  covered  by 
positive  linguistic  and  legal  evidence.  Bachofen,  McLennan, 
and  after  them  many  other  writers,'  as  will  later  be  shown, 
have  maintained  that  among  all  branches  of  the  Aryan  stock 
conclusive  proofs  exist  of  a  former  matriarch  ate,  or,  at  any 
rate,  of  exclusive  succession  in  the  female  line.     But  this 

1  Westeemahck,  op.  cit.,  224-35,  gives  an  ennmeration.  Noteworthy  examples 
of  patriarchal  power  are  afforded  by  the  ancient  Peruvians  and  Mexicans,  and  by 
the  modern  Chinese  and  Japanese.  On  the  Nahna  and  Maya  natives  see  Banceoft, 
Native  Races,  II,  2n-5S,  663-68.  Cf.  Kohlee,  "Das  Eecht  der  Azteken,"  ZVR.,XI, 
54,  55;  also  ibid.,  VI,  374  (Chinese),  333,  334;  VII,  373  (Papuas). 

2  Op.  cit,  225. 

3  Bachofen,  Das  Mutterrecht;  McLennan,  Studies,  I,  121  ff.,  195  ff. ;  idem. 
Patriarchal  Theory,  50  fif.,  71  S.,  96  S.,  120  £E,,  250  ff. ;  Daegun,  Mutterrecht  und 
Raubehe,  8,  13,  passim;  Gieaud-Teulon,  Les  origines  du  mariage,  130  ff.,  286  ff., 
329  ff. ;  idem.  La  mire  chez  certaines  peuples  de  Vantiquiti ;  Lippeet,  Geschichte  der 
Familie,  4  ff. ;  Lubbock,  Origin  of  Civilization,  153, 154.  Kohlee,  "Indisches  Ehe- 
und  Familienrecht,"  ZVR.,  Ill,  393  ff.,  holds  that  the  primitive  Aryans  must  neces- 
sarily have  recognized  relationship  through  the  mother.  For  the  literature  of  this 
subject  see  the  next  chapter. 


20  Matrimonial  Institutions 


view  is  decidedly  rejected,  if  not  entirely  overthrown,  by  the 
philologists,  and  depends  for  its  support  on  the  presence  in 
later  institutions  of  alleged  survivals.  The  judgment  of 
Delbruck  must  probably  be  accepted  as  decisive  for  the 
present  state  of  linguistic,  if  not  of  all  scientific,  inquiry. 
He  declares  that  "no  sure  traces  of  a  former  maternal  family 
among  the  Indo-Germanic  peoples  have  been  produced."' 
Similar  conclusions  are  reached  by  Schrader,  Max  Muller, 
and  Leist,^  Also,  among  the  institutional  writers.  Wake 
declares  that  "primitively  among  the  peoples  belonging  to 
the  wide-spread  Aryan  or  Indo-European  stock,  while  rela- 
tionship was  acknowledged  through  both  parents,  descent 
was  traced  preferably  in  the  male  line;"  ^  and  Bernhoft,  con- 
strained through  the  evidence  presented  by  Schrader  and 
Delbruck,  believes  that  it  is  now  placed  "beyond  question 
that  the  primitive  Aryans  did  not  live  according  to  mother- 
right,"  but  were  united  in  family  groups  resembling  the 
south  Slavonian  house  communities.*  On  the  other  hand, 
Dargun,  the  foremost  defender  of  the  theory  of  mother-right, 
thinks  that  Bernhoft  has  "capitulated"  too  easily.^     In  his 

1  DelbeCck,  "  Das  Mutterrecht  bei  den  Indogermanen,"  Preussiche  Jahrbiicher, 
XCVI,  14-27,  a  clear  summary  of  the  results  of  recent  research.  Cf.  his  Die  Indoger- 
manischen  Verwandtschaftsnamen  (Leipzig,  1889).  According  to  Hellwald,  Die 
mensch.  Familie,  453-80,  especially  459,  460,  patriarchal! sm  was  fully  established  at 
the  earliest  dawn  of  Indie  history;  but  there  are  nevertheless  traces  of  earlier 
mother-right, 

2SCHEADEK,  Sprachvergleichung  und  Urgeschichte  (2d  ed.),  536  ff. ;  JevoN8'8 
Translation,  369  ff. ;  Leist,  Alt-arisches  Jus  Gentium,  51-38.  Max  MOlleb  declares 
that  "whether  in  unknown  times  the  Aryas  ever  passed  through  that  metrocratic 
stage  in  which  the  children  and  all  family  property  belong  to  the  mother,  and 
fathers  have  no  recognized  position  whatever  in  the  family,  we  can  neither  assert 
nor  deny." — Biographies  of  Words,  xvii. 

3  Wake,  Marriage  and  Kinship,  359  ff.,  especially  382,  where  a  thorough  and 
detailed  criticism  of  McLennan's  theory  is  given. 

♦  BeenhOft,  "  Die  Principien  des  eur.  Familienrechts,"  ZVR.,  IX,  418,  419,  437  ff. 
See  also  his  Rdmische  KOnigszeit,  202  ff. ;  and  his  articles  in  ZVR.,  VIII,  11 ;  IV. 
227  ff. ;  and  compare  Daegun,  Mutterrecht  und  Vaterrecht,  91-94, 108.  Staecke,  op, 
cit.,  101-18,  also  gives  a  searching  examination  of  the  theory  of  McLennan  and  the 
earlier  views  of  Dargun,  rejecting  their  conclusions. 

*  Mutterrecht  und  Vaterrecht,  108. 


The  Patriarchal  Theory  21 

last  monograph,  entitled  Mutterrecht  und  Vaterrecht,  he 
maintains  essentially  the  conclusion  of  his  Mutterrecht  und 
Raubehe,  that  before  their  separation  the  Aryan  people  had 
developed  the  system  of  kinship  "through  the  mother  as 
the  only  or  chief  basis  of  blood-relationship"  and  had  "sub- 
ordinated their  entire  family  law  to  this  principle." '  But 
the  later  treatise  contains  a  very  important  modification,  or 
perhaps,  more  justly  speaking,  extension,  of  the  author's 
theory.  Setting  aside  as  still  an  open  question  the  general 
prevalence  of  promiscuity  or  sexual  communism  at  the  very 
dawn  of  distinctively  human  life,  Dargun  conceives  that, 
before  any  system  of  kinship,  maternal  or  agnatic,  became 
recognized  as  a  principle  of  customary  family  law,  there  must 
have  existed  a  family,  or  rather  parent-group  (EUerngruppe), 
in  which  the  father  was  protector  and  master  of  the  mother 
and  her  children.  This  parent-group  is  the  "hypothetical 
primordial  cell  of  the  family,"  brought  together  by  sexual 
requirements  and  the  need  of  sustenance  and  protection.  It 
is  "structureless,  devoid  of  any  firm  bond,  since  it  rests 
neither  upon  the  principle  of  relationship  nor  that  of  legalized 
power."  Its  resemblance  to  the  patriarchal  family,  though 
misleading,  "is  not  without  significance,"  For  it  "forms 
the  necessary  stage  of  an  evolution  which  in  analogous  man- 
ner is  also  passed  through  by  property.  Inductively  it  is 
still  demonstrable  that  individualism  and  atomism,  not  com- 
munism, as  is  usually  assumed,  are  the  starting  point  of 
evolution."^  As  a  general  rule,  according  to  Dargun,  the 
structureless  parent-group  is  superseded  by  the  maternal 
family,  whose,  basis  is  mother-right,  or  the  exclusive  legal 
recognition  of  blood-relationship  in  the  female  line.  Only 
in  rare  cases  does  the    patriarchal    agnatic    family   follow 

1  Daegun,  Mutterrecht  urid  Raubehe,  13.    Cf.  the  Mutterrecht  und  Vaterrecht, 
95, 117  ff.,  passim. 

2 Daegun,  Mutterrecht  und  Vaterrecht,  41,  42,  4  ff.,  28,  29-42, 118,  passim. 


22  Matrimonial  Institutions 

immediately  upon  the  primitive  group,  without  prior  develop- 
ment of  mother-right;*  and  hence,  under  exceptional  condi- 
tions hindering  the  rise  of  the  maternal  system,  do  we  find 
a  form  of  the  family  in  which,  from  a  very  early  period,  the 
house-father  is  the  source  of  authority,  practical  or  legalized. 
Aside  from  his  theory  of  evolution,  in  his  principal  thesis, 
which  he  fairly  sustains  by  powerful  argument,  Dargun  has 
rendered  to  science  a  distinct  service.  It  is,  he  insists, 
highly  necessary  carefully  to  distinguish  between  power  and 
relationship.  "Mother-right"  does  not  involve  "maternal 
power"  or  the  matriarchate,  though  sometimes  actually 
united  with  it;  nor  does  the  headship  of  the  house-father  as 
provider,  protector,  and  master  imply  agnation,  the  so-called 
"father-right."  There  is  no  contrast  between  power  and 
relationship.  "  Mother-right  in  the  sense  of  exclusive  ma- 
ternal kinship  is  compatible  with  a  patriarchate  just  as 
exclusive."  They  may,  and  often  do,  coexist.  It  follows 
that  the  presence  of  the  maternal  system  of  kinship  does  not 
imply  the  existence  of  maternal  power;  just  as  it  does  not 
imply  the  non-existence  of  paternal  authority.  The  distinc- 
tion between  power  and  kinship  is  justly  declared  to  be  an 
"indispensable  key"  for  the  solution  of  the  greatest  diffi- 
culties arising  in  this  branch  of  sociological  science,  the  dis- 
regard of  which  has  often  vitiated  or  confused  the  argument 
even  of  the  foremost  investigators.^  With  the  aid  of  his  key 
Dargun  examines  the  linguistic  evidence,  which  he  finds 
favorable  to  the  existence  of  mother-right  among  all  the 
Aryan  peoples  after  the  separation,  though  united  with  a 
real  supremacy  of  the  house-father;*  and  he  protests  vigor- 

1  Dargdn,  op.  cit.,  41. 

2  Ibid.,  3  ff.,  28,  36,  86  ff.,  155,  passim.  As  remarked  in  the  text,  the  whole  work  is 
concerned  with  the  thesis  in  question.  The  distinction  is  also  made  in  the  Mutter- 
recht  und  Raubehe,  18. 

3  See  Mutterrecht  und  Vaterrecht,  86-116,  for  his  criticism  of  the  linguistic  argu- 
ment. 


The  Patriarchal  Theory  23 

ously  against  the  tendency,  even  on  the  part  of  Leist,  to 
confound  old  Indie  with  old  Aryan  law;  for  the  "Indians  of 
the  Vedas  are  in  many  respects  more  advanced  than  the 
Germans  a  thousand  or  the  Slavs  two  thousand  years  later.'" 
Valuable  as  the  criticism  of  Dargun  undoubtedly  is,  notably 
his  distinction  between  power  and  relationship,  it  can 
scarcely  be  admitted  that  he  has  done  more  than  reopen  the 
question  of  the  existence  at  any  time  of  mother-right  among 
the  Aryans.  His  results  are  negative.  He  has  not  shifted 
the  burden  of  proof ;  while  his  argument  tends  to  confirm  the 
view  of  the  philologists  that  from  the  primitive  stage  the 
Aryan  father  was  head  of  the  household.^ 

But  the  patriarchal  theory,  strictly  considered,  fares  little 
better  than  the  maternal  at  the  hands  of  recent  investiga- 
tors. Leist,  who  has  been  able  with  wonderful  completeness 
to  reconstruct  the  juridical  life  of  the  early  household, 
though  largely  on  the  basis  of  old  Indie  sources,  declares 
positively  that  "the  Aryan  people  has  not  within  itself  a 
single  element  of  patriarchalism."^  This  statement,  as 
Bernhoft  observes,*  is    perhaps   too    sweeping,  even   when 

iJ6td.,  91,  92.  Cf.  a  similar  protest  against  conclusions  as  to  the  primitive 
Aryans  derived  from  Greek  and  Roman  sources,  ibid.^  116;  and  Mutterrecht  uni 
Raubehe,  14. 

2  Mutterrecht  und  Vaterrecht,  69,  denies  that  women  have  ever  attained  political 
headship ;  but  (113,  114)  declares,  though  the  researches  of  the  philologists  make 
it  probable  that  the  Aryans  lived  under  the  rule  of  house-fathers,  that  neither  this 
fact  nor  any  other  circumstance  tells  against  the  view  that  mother-right  coexisted 
from  antiquity ;  while,  in  a  still  more  remote  period,  this  may  have  implied  matri- 
archal power  in  the  family ;  but  of  such  a  matriarchate  no  proofs  are  presented. 

3  Leist,  Graeco-italische  Rechtsgeschichte,  64.  This  work  is  continued  in  the 
Alt-arisches  Jus  Gentium,  the  two  books  really  constituting  a  single  treatise.  Com- 
pare the  more  conservative  view  of  Jolly,  Ueber  die  rechtUche  Stellung  der  Frau, 
4  ff.,  20-22,  and  Hindu  Law  of  Partition,  76  S.,  who,  however,  denies  the  existence  of 
an  authority  on  the  part  of  the  Hindu  husband  equal  to  that  of  the  Roman  pater, 

♦  BeenhOft,  "Zur  Geschichte  des  eur.  Familienrechts,"  ZVR.,  VIII,  12, 15,  who 
also  regards  the  view  of  Daegun,  Mutterrecht  und  Raubehe,  8, 13,  as  extreme.  Cf. 
his  "  Principien  des  eur.  Familienrechts,"  ZVR.,  IX,  416,  n.  39.  Kohlee  favors  the 
patriarchal  system  and  agnation  for  the  Indie  peoples,  in  ZVR.,  VII,  201,  210,  216; 
X,  85.  Heaen,  Aryan  Household,  chaps,  iii-vi,  passim,  takes  practically  the  same 
view  as  Maine  regarding  the  patriarchal  theory,  rejecting  entirely  for  the  Aryans  the 
matriarchal  hypothesis. 


24  Matrimonial  Institutions 

tested  by  the  results  of  Leist's  own  researches;  but  the 
patriarchal  family  of  Sir  Henry  Maine  does  not  appear. 
The  evolution  of  juridical  conceptions  among  the  old 
Aryans,  according  to  Leist,  presents  two  general  phases. 
First  is  the  rita  stage,  or  period  of  fixed,  divinely  appointed 
order,  of  natural  law,  corresponding  to  the  Greek  cosmos  or 
phusis  and  the  Latin  ratum  or  ratio  naturalis.  In  this 
"natural  history''''  or  pantheistic  stage  there  is  at  first  little 
idea  of  law  as  something  to  be  separately  contemplated. 
Under  rita  is  comprehended  the  unchangeable  order  observ- 
able in  the  material  world  as  well  as  in  the  physical  and 
social  life  of  man;  but  the  universe  and  the  creative  energy, 
the  All  and  Varuna,  are  identified  or  blended  in  thought.* 
Only  slowly  are  these  concepts  differentiated  and  the  immu- 
table order  of  nature  becomes  looked  upon  as  dhama,  or  a 
holy  ordinance  established  by  Varuna,  who  now  appears  as  a 
protecting  and  creative  spirit. 

Dhama  thus  forms  a  means  of  transition  to  the  second 
juridical  phase,  that  of  dharma,  or  divine  law,  corresponding 
to  the  Greek  themis  and  the  Latin/os.'^  In  the  dharma  period, 
law  is  regarded  as  inspired  by  the  gods,  whose  earthly  agent, 
the  priest  or  hero-king,  is  intrusted  with  its  application ;  and 

iThe  rifa-conception  is  well  expressed  by  Db.  Botsfoed:  "This  mankind 
learned  from  the  revolution  of  sun  and  stars,  from  the  succession  of  the  seasons, 
from  the  unchanging  movements  of  nature.  The  conception  thus  gained  was  trans- 
ferred to  human  modes  of  activity.  The  sexes  in  marriage  were  subject  to  the 
naturalis  ratio,  as  well  as  the  continuance  of  the  race  through  successive  genera- 
tions. The  relation  of  parents  to  children  with  their  reciprocal  obligations  and 
privileges — the  protection  and  support  which  the  father,  as  the  stronger,  offered,  the 
kind  care  of  the  mother  for  her  infants,  the  reverence  and  affection  with  which  the 
children  requited  their  services,  the  love  of  youth  and  maiden,  leading  to  marriage — 
all  these  rested,  in  the  rita  period,  on  the  one  foundation  of  natural  law." — Athenian 
Constitution,  29,  30. 

2  The  discussion  of  the  two  general  phases  of  rita  and  dharma,  with  their 
transitional  stages,  constitutes  one  of  the  most  valuable  parts  of  Leist's  contribu- 
tion to  comparative  jurisprudence :  Alt-arisches  Jus  Gentium,  3,  111  ff.,  132, 133, 174  fl., 
606;  Graeco-italische  Rechtsgeschichte,  175-285.  Cf.  Botsfoed,  op.  cit.,  24,  25,  26  ff.,  for 
an  excellent  account ;  on  the  Roman  stages  see  Mdiehkad,  Private  Law  of  Rome, 
14-23 ;  and  for  the  Greek  themis  and  the  themistea  of  the  hero-kings  consult  Maiitb, 
Ancient  Law,  chap.  i. 


The  Patriarchal  Theory  25 

in  it  the  rules  governing  civil  and  public  conduct,  according  to 
inodern  conceptions,  are  not  distinguished  from  those  relating 
to  manners,  morality,  or  religion.  When  history  dawns,  our 
early  Aryan  ancestors  had  already  entered  the  dharma  phase 
of  evolution ;  and  even  now  the  Hindus  have  scarcely  gained 
the  third  phase,  prevailing  in  the  civilized  West,  in  which 
the  element  of  "civil  law"  is  separate  from  all  other  ingre- 
dients/ 

Of  the  family  relations  of  our  primitive  ancestors  in  the 
rita  period  we  know  little,  except  through  inference  or 
analogy.  The  so-called  "natural  forms"  of  marriage  by 
purchase  and  capture  were  doubtless  practiced,  but  probably 
not  exclusively;  and  these  customs  were  handed  down  to 
the  second  period,  though  they  were  modified  to  bring  them 
into  harmony  with  the  higher  ethical  and  social  ideas  which 
had  then  gained  predominance.^  Whether  or  not  the  absolute 
power  of  the  father  and  the  strict  rule  of  agnation  prevailed 
it  would  be  as  difficult  to  affirm  as  to  deny.^  In  the  dharma 
period  the  ancient  rita  conception  of  marriage  as  an  ordi- 
nance of  nature,  whose  real  purpose  is  to  provide  posterity, 
is  still  retained;  but  it  gains  a  social  character.*  The  central 
principle  of  the  Aryan  household  is  the  Hestia -Vesta  cult, 
or  the  worship  of  the  sacred  hearth.  To  gain  the  protection 
of  the  ancestral  gods  the  hearth-fire  must  be  kept  always 

iFor  a  definition  of  dharma  see  BeenhOft,  "Ueber  die  Grundlagen  der 
Eechtsentwicklung  bei  den  indogermanischen  VOlkern,"  ZVB.,  II,  266  ff.,  261  tf. 

2Leist,  Alt-arisches  Jus  Gentium,  122  £F.,  125-33. 

3BOTSFOED,  Athenian  Constitution,  10 ff.,  21  ff.,  25  ff.,  divides  the  rita  period  into 
two  stages:  that  of  the  "primitive  Aryan  household,"  and  that  of  the  "early  Ayran 
household,''  and  thinks  that  the  latter  stage  is  represented  by  the  house-communi- 
ties of  the  southern  Slavs ;  but  this  may  be  doubted.  Dr.  Botsford  favors  the  exist- 
ence of  agnation  and  the  absolute  power  of  the  father  in  the  rita  period ;  and 
believes  that  the  liberal  tendencies,  presently  to  be  pointed  out,  are  a  development 
of  the  dharma  period,  beginning  before  the  separation  (24-26).  On  agnation  and 
the  power  of  the  early  Aryan  house-fathers  see  Sohradee,  Sprachvergleichung  und 
Urgeschichte,  386  ff.;  Zimmee,  Altindisches  Leben,  319  ff.,  326  ff. ;  DblbeCck,  Die 
indogerm,anischen  Vervandtschaftsnamen,  382,  586-88,  543,  544;  JoLliT,  Ueber  die 
rechtliche  Stellung,  etc.,  4  ff.,  20-22;  Hindu  Law  of  Partition,  76  ff. 

*Leist,  op.  cit.,  80. 


26  Matrimonial  Institutions 

burning;  and  the  care  of  the  family  sacra  is  the  special 
function  of  the  house-father,  who  is  lord  and  priest  of  the 
family.  But  the  house-mother  holds  a  worthy  position  in 
the  domestic  worship.  From  the  first  kindling  of  the  hearth- 
fire  at  the  nuptials,  she  appears  as  co-priestess  and  helper  of 
her  husband  in  the  sacred  rites.  The  whole  life-partnership 
of  the  wedded  pair  is  shaped  and  dominated  by  lofty  religious 
motives.  The  Aryan  housewife  is  not  the  chattel  of  her  hus- 
band; she  is  a  free  woman  and  shares  in  his  highest  sacred 
functions.  The  primary  purpose  of  the  union  is  the  birth 
of  a  legitimate  son  to  perpetuate  the  paternal  line  and  to 
foster  the  ancestral  cult.'  So  paramount  is  this  motive  that, 
in  case  no  son  is  born  in  wedlock,  resort  may  be  had  to 
adoption,  or  to  analogous  expedients  for  the  fictitious  exten- 
sion of  fatherhood.  For  among  the  Aryans,  as  Maine 
suggests,  the  fiction  of  adoption  is  of  the  highest  legal 
importance;  and,  indeed,  very  widely  among  the  races  of 
mankind  it  has  served  a  useful  purpose  in  social  progress." 

1  On  ancestor-worship,  in  connection  with  the  literature  already  cited,  p.  13, 
note  4,  see  Leist,  Graeco-italische  Rechtsgeschichte,  7  ff.,  121  ff. ;  Alt-arisches  Jus  Gen- 
tium, 59-118;  ZiidMEB.,  Altindisches  Leben,31&;  ScmnEiDEVt,,  Die NaturvOlker,  1,202S., 
II,  64  f.,  75,  76, 108,  126  f.,  255  ff.,  369;  Kohlee,  "Indisches  Ehe-  und  Familienrecht," 
ZVR.,  Ill,  408  ff.;  "Studien  fiber  kfinstliche  Verwandtschaft,"  ibtd.,  V,  423-25;  also 
for  the  Papuas,  ibid.,  VII,  373.  For  the  influence  of  ancestor-worship  among  the 
Slavs  see  Kovalevsky,  Mod.  Customs  and  Anc.  Laws  of  Russia,  33  ff. ;  among  the 
American  aborigines,  Peet,  "Ethnographic  Religions  and  Ancestor- Worship," 
Am.  Antiquarian,  XV,  230-45,  and  "Personal  Divinities  and  Culture  Heroes,"  ibid., 
348-72. 

2  McLennan,  Patriarchal  Theory,  10-14,  275  ff.,  282,  284,  294,  criticises  Maine's 
theory  of  adoption.  Kohler's  investigations  show  that  adoption,  artificial  brother- 
hood, milk -kinship,  and  like  institutions  have  widely  prevailed  and  rendered  impor- 
tant service.  Adoption,  he  holds,  may  arise  in  different  motives ;  sometimes  being 
due  to  sexual  communism,  when  it  is  a  means  of  assigning  the  children  to  particular 
fathers ;  but  very  generally  arising  in  the  desire  for  descendants  to  perpetuate  the 
family-worship:  "Studien  fiber  die  kfinstliche  Verwandtschaft,"  ZVR.,\,  415-40; 
see  also  for  much  important  matter  his  various  other  writings  in  ZVR.,  Ill,  408-24, 
393  ff.  (India) ;  VI,  190  (Chins),  345  (Indian  Archipelago),  377-79  (China),  403  (Korea) ; 
VII,  218  ff.  (Punjab);  VIII,  100  (Rajputs),  109-12  (Dekkan),  243,  244  (Arabia).  See 
also  Post,  Familienrecht,  25-42,  for  an  interesting  account;  also  Mayne,  Hindu 
Law  and  Usage,  60  ff.,  77,  99-207;  Leist,  Alt-arisches  Jus  Gentium,  103  ff.,  115,  606; 
ToENAUW,  "Das  Erbrecht  nach  den  Verordnungen  des  Islams,"  ZVR.,  V,  151; 
Feiedeichs,  "Familienstufen  und  Eheformen,"  ibid.,  X,  237-45;  Staecke,  Primitive 
Family,  146,  233;  Hue,  Chinese  Empire,  II,  226. 


The  Patriarchal  Theory  27 

Here  also  the  Aryan  wife  appears  as  co-priestess  with  her 
husband.  Each  is  regarded  as  having  a  share  in  the  beget- 
ting of  the  child,  and  they  unite  in  giving  the  son  in  adop- 
tion to  another  household.'  Accordingly  the  wife  is  not  the 
mere  chattel  of  her  husband,  who  owns  the  children  by 
virtue  of  his  proprietorship  in  the  mother.^  The  house- 
father appears  in  the  sacred  books  as  lord  of  the  wife,  who 
owes  him  reverence  and  obedience ;  yet  she  is  not  reduced 
to  patriarchal  slavery.  With  the  husband  she  exercises  joint 
control  over  the  sons;  and  these  are  released  entirely  from 
parental  authority  when  they  marry  and  establish  new  house- 
holds.^ The  male  line  takes  legal  precedence;  but  the 
maternal  kindred  are  clearly  recognized  in  a  way  wholly 
inconsistent  with  strict  agnation.*  According  to  the  primi- 
tive Indie  conception  the  wife  is  regarded  as  incapable  of 
property.  Neither  the  widow  nor  the  daughters  could 
inherit,  the  estate  passing  to  the  sons  as  in  theory  a  means 
of  providing  for  the  sacra  of  the  deceased  house-father. 
Still  the  bride  possessed  her  personal  belongings — her 
couch,  clothing,  and  ornaments;  and  from  this  germ  grad- 
ually arose,  beginning  even  in  remote  antiquity,  her  existing 
rights  of  property  and  inheritance.^     In  short,  the  old  Aryan 

1  Leist,  op.  cit.,  103, 115,  504  ff.  On  the  position  of  the  house-mother  cf.  Heabn, 
Aryan  Household,  86-91. 

2  Leist,  op.  cit.,  122,  123,  126  ff.,  successfully  combats  the  theory  of  Kohler 
("Indisches  Ehe-  und  Familienrecht,"  ZVR.,  Ill,  394),  who  declares  that  it  is  a 
cardinal  principle  of  Indo-Germanic  legal  evolution  that  "die  Vaterschaft  beruht 
auf  dem  Rechte  des  Mannes  am  Weibe,  kraft  dessen  dem  Hausvater  das  Kind  des 
Weibes  zukomme,  ebenso  wie  dem  Eigenthumer  des  Feldes  die  Frucht."  The  same 
view  is  expressed  by  Kohleb  in  Krit.  Vjschr,  N.  F.,  IV,  17,  18;  and  in  "Vorislami- 
tisches  Recht,"  ZVR.,  VIII,  242.  Cf.  Ungee,  Die  Ehe,  11,  77 ;  Lippebt,  Geschichte  der 
Familie,  95  ff.,  99, 158. 

3  Although  the  married  son  possessed  a  hearth  and  was  a  free  member  of  the 
gens,  "his  house  did  not  become  fully  independent  in  religious  and  property  matters 
till  the  death  of  the  father  and  the  final  division  of  the  property." — Botsfoed, 
Athenian  Constitution,  27,  and  the  sources  there  cited.  Cf.  Zimmee,  Altindisches 
Leben,  326 ff.;  Leist,  Alt-arisches  Jus  Gentium,  124. 

*  McLennan,  Patriarchal  Theory,  chaps,  xvi,  xvii ;  Leist,  op.  cit.,  124,  .504  ff. 
5 Leist,  op.  cii.,  496-508;  Kohleb,  "Indisches  Ehe-  und  Familienrecht,"  ZVR., 
Ill,  424  ff. 


28  Matrimonial  Institutions 

household  reveals  but  the  elements  of   agnation   and  the 
potestas  as  they  appear  in  the  Koman  law/ 

This  conclusion  is  confirmed  by  the  customs  of  the  Aryan 
peoples  after  the  separation.  Among  the  Hellenes  at  the 
first  dawn  of  history  the  family  appears  as  a  member  of  the 
gens,  which  is  held  together  usually  by  the  ties  of  blood- 
relationship.  The  house-father  is  lord  or  monarch  of  the 
family.  But  his  authority  is  tempered  in  various  ways. 
Originally,  as  among  the  primitive  Aryans,  he  may  have 
exercised  the  power  of  life  and  death  over  his  children ;  but 
in  no  case  could  he  "put  a  child  to  death  without  the  con- 
sent of  the  collective  ancestors,"  or  near  kindred.^  By  the 
Aryans  the  jus  vitae  necisque  was  never  looked  upon  as  an 
arbitrary  right  of  destruction,  but  merely  as  a  means  of 
domestic  discipline.'  The  Greek  father  might  sell  his  minor 
sons  and  unmarried  daughters;  but  "it  appears  that,  even 
here,  merely  the  labor  of  the  youth  and  not  the  person  itself 

1  Leist,  Graeco-italische  Rechtsgeschichte,  95,  96.  Lack  of  space  prevents  any 
attempt  at  a  detailed  discussion  of  the  old  Aryan  or  Indie  family  and  matrimonial 
law ;  a  general  reference  must  suffice:  Leist,  Alt-arisches  Jus  Gentium,  59  fF.,  496  ff. ; 
Graeco-italische  Rechtsgeschichte,  7  ff.,  57  ff.,  passim;  Schbadeb,  Sprachvergleichung 
und  Urgeschichte,  379-95;  Ziumeb,  Altindisches  Leben,  305-36;  Jolly,  Rechtliche 
Stellung,  1  B. ;  idem,  Hindu  Law  of  Partition,  70 ff.;  Kohleb,  "Indisches  Ehe-  tmd 
Familienrecht,"  ZVR.,  Ill,  342-442;  and  his  various  articles,  ibid.,  VI,  344-46  (Indian 
Archipelago  and  Caroline  Islands) ;  VII,  201-39  (Punjab) ;  VIH,  89-147,  262-73  (Indian 
customary  law) ;  IX,  323-36  (Bengal) ;  X,  66-134  (Bombay) ;  XI,  163-74  (Indian  North- 
west Provinces) ;  Botsfokd,  Athenian  Constitution,  2-67  (excellent) ;  Wake,  Mar- 
riage and  Kinship,  159  ff.,  355  ff.,  index;  BeenhOft,  "Altindisches  Familienorgani- 
sation,"  ZVR.,  IX,  1-45;  McLennan,  Patriarchal  Theory,  50  ff.,  96  ff.,  especially 
the  chapters  on  "sonship  among  the  Hindoos,"  266-339,  combating  the  view  of 
Maine,  Early  Law  and  Custom,  78-121,  232  ff. ;  Early  Hist,  of  Inst,  116-18,  310  ff. ;  and 
Matne,  Hindu  Law  and  Usage,  50  ff.,  60  ff.,  passim;  Staecke,  Primitive  Family, 
lOOff. ;  Letooeneau,  L'ivolution  du  mariage,  index;  Hkaen,  Aryan  Household; 
Ungee,  Die  Ehe,  21-27;  Badeb,  La  femme  dans  VInde  antique,  39  ff. ;  Jacolliot, 
Lafemme  dans  VInde,  7  ff. 

2BOTSFOED,  .4^/ienian  Constitution,  .50;  Leist,  Graeco-italische  Rechtsgeschichte, 
59  ff.  Westeemaeck,  Human  Marriage,  230,  justly  observes  that  the  power  of  the 
father  among  the  Greeks,  Germans,  and  Celts,  "  to  expose  his  children  when  they 
were  very  young  and  to  sell  his  marriageable  daughters,  does  not  imply  the  posses- 
sion of  a  sovereignty  like  that  which  the  Roman  house-father  exercised  over  his 
descendants  at  all  ages." 

3  Leist,  op.  cit.,  60,  and  59  ff.,  for  his  discussion  of  the  Aryan  custom  of  expos- 
ing new-born  children. 


1 


The  Patriarchal  Theory  29 

was  disposed  of  by  sale,"  and  the  custom  was  controlled  by 
the  usage  of  the  gens}  The  wife,  as  among  the  Hindus, 
holds  a  dignified  position  in  the  household.  She  is  her 
husband's  partner  in  the  domestic  economy  and  the  sacred 
rites.  Equally  with  him  she  is  "the  cause  of  the  eon's 
existence,"  and  in  consequence  exercises  over  him  con- 
jointly with  the  father  the  powers  of  sale  and  life  and  death.^ 
Thus  Hellenic  custom  preserves  the  essential  element  of  the 
Aryan  paternal  authority,  which  signifies  a  protecting,  not 
an  arbitrary  or  ruthlessly  destructive,  power.  Among  the 
historic  Greeks  the  agnatic  principle  finds  expression  espe- 
cially in  the  right  of  guardianship,  which  is  transmitted  in 
the  paternal  line.  Such  is  the  judgment  of  Leist,  whose 
masterly  account  of  the  development  of  the  Aryan  agnatic 
conception  proves  that  here  as  elsewhere  the  Roman  and  the 
Greek  stood  upon  common  ground.*  The  point  of  divergence 
is  the  lifelong  continuance  of  the  Roman  potestas;  whereas 
in  Hellas  the  son  was  emancipated  at  maturity.* 

Examination  of  the  customs  of  the  Celts,*  the  Slavoni- 

IBOTSFOED,  op.  cit.,  51;  Fdstel  de  Coolanges,  Ancient  City,  US,  120,  notes; 
Plxjtaech,  Solon,  13. 

2BOT8FOED,  op.  cit.,  52;  Leist,  op.  cit.,  57,  58,  64, 11  £f. 

3  Ibid.,  57-102. 

*In  the  post-Homeric  age  agnation  did  not  exist;  see  Botsfoed,  op.  cit.,  73.  In 
general  on  the  Greek  family  see  Heuza,  Ehebegriindung  nach  attischem  Rechte,  8  £F. ; 
McLennan,  Studies,  1, 121-23,  especially  the  essay  on  "  Kinship  in  Ancient  Greece," 
ibid.,  195-246  (favoring  the  maternal  system) ;  Botsfoed,  op.  cit.,  chaps,  i,  ii,  iii,  sup- 
porting the  patriarchal  theory  ;  but  Dr.  Botsford's  patriarchal  family  is  not  that  of 
Sir  Henry  Maine;  Lasaulx,  Zur  Gesch.  u.  Philos.  der  Ehe  bei  den  Griechen,  3  ff. ; 
Daegun,  Mutterrecht  und  Raubehe,  2, 3, 14 ;  Gieaud-Teulon,  Les  origines,  etc.,  286-301 ; 
Wake,  Marriage  and  Kinship,  24  ff.,  355  ff.,  366  ff.,  who  criticises  McLennan's  view  in 
detail  for  the  Aryan  peoples ;  Kovalevsky,  Tableau,  35, 36;  BeenhOft,  "  Das  Gezetz 
von  Gortyn,"  ZVR„  VI,  281-304,  430-40;  and  his  "  Ehe-  und  Erbrecht  der  griechischen 
Heroenzeit,"  ibid.,  XI,  326-64,  both  articles  being  of  great  value ;  Kohlee,  "  Die  Ion- 
sage  Tind  Vaterrecht,"  ibid.,  V,  407-14,  who  proves  the  existence  of  "  judicial  "  father- 
hood; Westebmaeck,  Human  Marriage,  2.32,233;  Ungee,  Die  Ehe,  52-65;  Badee, 
Lafemme  grecque,  1,  41  ff. ;  II,  1  ff.  See  also  Heaen,  Aryan  Household,  and  Fustel, 
DE  CouLANGES,  Ancient  City,  for  much  valuable  matter. 

5  McLennan,  Patriarchal  Theory,  120-31 ;  Studies,  I,  68  ff.,  118;  Gieadd-Teulon, 
Les  origines,  etc.,  329-32;  Kovalevsky,  Tableau,  31,  32;  Maine,  Early  Hist,  of  Inst., 
216  ff.,  passim. 


30  Matrimonial  Institutions 

ans,'  and  ancient  Germans^  leads  to  a  like  result.  Accord- 
ingly we  are  forced  to  admit  the  accuracy  of  Gaius's  conclu- 
sion. Writing  in  the  time  of  the  Antonines,  he  declares  his 
belief  that  the  patria  potestas  is  peculiarly  a  Roman  institu- 
tion. Only  among  the  Asiatic  Galatse  had  he  observed  a 
similar  authority  exercised  by  the  father  over  his  children.' 
Instead  of  existing  "almost  everywhere,"  of  ten  preserving  as 
in  a  mold  the  imprint  of  the  paternal  power  which  it  has 
outlived  and  upon  which  it  is  thought  always  to  depend, 
among  Aryan  peoples  agnation  is  found  together  with  the 
potestas  only  in  one  instance,  that  of  the  Roman  law;  and 
even  in  this  case  it  was  virtually  the  first  to  expire.*  For, 
as  is  well  known  to  the  student  of  Roman  jurisprudence, 
strict  agnation,  as  determining  right  of  succession,  disap- 
peared under  the  influence  of  the  edict  and  imperial  statutes 
long  before  the  last  vestige  of  the  real  patria  potestas  was 
swept  away  by  the  legislation  of  Justinian.* 

Furthermore,  in  addition  to  the  historical  difficulty,  there 
is  another  strong  reason  for  doubting  the  dependence  of  agna- 
tion upon  patria  potestas:  the  inconsistency  of  the  latter 

1  The  South  Slavonian  house  community  is  an  early  institution ;  see  Kbauss, 
Sitte  und  Branch  der  SUdslaven,  2  ff.,  64-128;  Botsfoed,  op.  cit,  12-21;  Gieadd- 
Teulon,  op.  cit.,  340, 341 ;  McLennan,  op.  cit.,  71-119;  Maine,  Ancient  Law,  118;  Early 
Law  and  Custom,  232-82.  But  it  is  not  primitive.  Kovalevsky,  Mod.  Customs  and 
Anc.  Laws  of  Rtissia,  chaps,  i,  ii,  finds  many  survivals,  as  he  believes,  of  an  earlier 
maternal  system  of  kinship  and  succession. 

2  The  question  for  the  Germans  will  be  again  referred  to ;  see  chap,  vi,  below. 
3GAHJ8, 1,  55,  Poste,  61. 

<Snch  is  the  view  of  McLennan,  Patriarchal  Theory,  136-40, 181  £F.,  205  ff.,  214, 
260-62,  where  Maine's  theory  of  agnation  is  criticised. 

5  "  The  last  vestiges  of  the  two  disappeared  from  the  law  together.  But,  in  fact, 
agnation  went  first.  The  paternal  powers  were  susceptible  of  abridgment  and 
restriction  in  various  ways  short  of  extinction  The  wife  might  become  free  from 
them  ;  the  children  also ;  and  yet  they  might  remain  for  the  slaves.  And  it  was  thus 
gradually  that  they  perished.  But  agnation  is  perfect,  or  it  ceases  to  be  agnation. 
And  the  moment  the  ties  of  blood  through  women  received  civil  effects  agnation  was 
no  more."— PatrJorc/iaZ  Theory,  182.  On  the  decay  of  agnation  and  patria  potestas 
see  SOHM,  Institutes,  357,  358,  389-93,  438-47 ;  Puchta,  Institutionen,  II,  18,  384  ff.,  431  ff., 
457  ff. ;  Muiehead,  Iiitroduction  to  the  Private  Laio  of  Rome,  422  ff.,  343-49;  Maine, 
Ancient  Law,  chap,  v ;  Moeet,  Roman  Law,  78, 129,  150,  240-43,  248. 


The  Patriarchal  Theory  31 

in  its  effects  upon  kinship.  If  the  descendants  of  married 
women  are  excluded  from  relationship,  solely  on  the  ground 
that  they  belong  to  another  potestas,  why,  for  the  same 
reason,  should  not  the  children  of  men,  say  of  brothers 
sui  juris,^  be  likewise  mutually  excluded?  Plainly  some 
more  satisfactory  explanation  of  this  remarkable  discrimi- 
nation between  the  sexes  must  exist.  Such  an  explanation 
McLennan  finds  in  exogamy,  or  the  custom  which  forbids 
marriage  between  persons  of  the  same  group  of  acknowl- 
edged kindred.^  It  seems  probable  that  in  early  times  the 
patrician  family  was  coextensive  with  the  gens.  Agnatio 
and  gentilitas  were  equivalent  expressions.*  During  the 
historical  period,  at  any  rate,  geniilUas  is  traced  through 
the  male  line;  and  it  is  not  impossible  that  originally  inter- 
marriage was  forbidden  between  those  bearing  the  same 
gentile  name.*  In  that  case,  agnation  appears  as  the  natural 
result  of  the  gentile  rule  of  exogamy,  retained,  after  the 
weakening  of  the  gens,  for  the  regulation  of  succession 
within  the  family.  Exogamy,  however,  does  not  necessarily 
imply  the  patria  potestas,  but  is  found  more  frequently 
perhaps  with  the  maternal  than  with  the  paternal  system 
of  kinship.^  In  fact,  for  the  Romans  and  kindred  Italic 
tribes,  considerable  evidence  has  been  collected  by  various 
writers  pointing,  as  they  believe,  to  an  early  transition  from 

1  McLennan,  Patriarchal  Theory,  190.  ^Ibid.,  194, 193. 

^Ibid.,  204-14.    Cf.  Muiehead,  Introduction  to  the  Private  Law  of  Rome,  43. 

*Plutaech,  Roman  Questions,  VI,  tells  us  that  "in  early  times  the  prohibition 
of  marriage  extended  as  far  as  the  tie  of  blood ;  and,  if  this  be  received,  it  involves 
—  since  the  gentiles  considered  themselves  to  be  of  the  same  blood  —  that  there  could 
not  be  marriage  between  persons  of  the  same  gens."— McLennan,  op.  cit.,  206,  207. 

5  Leist,  Graeco-italische  Rechtsgeschichte,  95, 96,  also  denies  (against  M  arquardt, 
Privatleben,  I,  22,  29)  that  the  distinctive  feature  of  the  Roman  family  is  dependent 
on  the  patriarchal  authority,  since  the  elements  of  agnation  and  paternal  power  are 
Aryan.  BernhOft,  "Germanische  uud  moderne  Eechtsideen  im  rezipirten  rOm. 
Recht,"  ZVR.,  IV,  234,  holds  that  Roman  agnation  does  not  depend  upon  blood- 
relationship,  but  upon  power;  and  this  was  an  Aryan  characteristic;  idem,  R6m. 
K5nigszeit,&'dS.,^i,  201.  McLennan's  hypothesis  is  plausible,  though  not  strongly 
supported  by  proof.  Cf.  Staecke,  Primitive  Family,  101;  Wake,  Marriage  and 
Kinship,  384,  383. 


32  Matrimonial  Institutions 

the  maternal  to  the  cognatic  or  the  agnatic  system,'  While 
this  conclusion  may  be  rejected,  it  must  nevertheless  be 
admitted  that  criticism  of  the  patriarchal  theory  has  been 
very  successful  in  its  general  results.  It  appears  to  have 
established  beyond  question  the  complex  and  highly  artificial 
character  of  the  Roman  family.^  So  far  from  being  the 
type  of  early  social  organization,  it  is  seen  to  be  relatively 
modern  and  ill  fitted  to  the  condition  of  primitive  men. 

In  the  meantime,  the  patriarchal  theory  has  had  to  reckon 
with  a  totally  different  view  of  the  genesis  and  development 
of  social  institutions.     To  this  view  let  us  now  turn. 

1  Such  are  the  isolated  facts  comprised  in  the  early  annals  which  seem  to  imply 
acknowledged  kinship  in  the  female  line,  even  precedence  of  the  latter;  the  fact  that 
the  status  of  slaves,  illegitimate  children,  and  the  children  of  concubines  was  deter- 
mined by  the  condition  of  the  mother;  the  effects  of  marriage  by  usus;  the  sup- 
posed evidences  of  former  wife-capture  and  wife-purchase,  marking  the  transition 
to  the  agnatic  system  ;  the  instances  of  wife-lending  as  by  the  elder  Cato;  and  espe- 
cially the  plebeian  element ;  for  cognation,  not  agnation,  prevailed  among  the  ple- 
beians, and  possibly  among  them  kinship  was  at  first  counted  only  through  the 
mother;  see  Daegun,  Mutterrecht  und  Raubehe,  9-13,  14;  Mutterrecht  und  Vater- 
recht,  115 ;  BeenhOft,  "Zur  Geschichte  des  europaischen  Familienrechts,"  ZVR. ,YII1, 
197-201;  "  Germanische  und  moderne  Rechtsideen  im  rezipirten  rOm.  Recht,"  ibid., 
IV,  227  ff. ;  Staat  und  Recht  der  rOni.  KOnigszeit,  192,  202-7 ;  Gieacd-Teulon,  Les 
origines  du  marlage,  408-26 ;  Sohm,  Institutes,  360,  361,  notes ;  Kaelowa,  Die  Formen 
der  rOm.  Ehe,  1  ff. ;  McLennan,  Patriarchal  Theoi-y,  194  ff.,  205  ff.,  259  ff. 

2 "Die  Ehe  des  rOmischen  Civilrechts  (justum  matrimonium)  war  eine  formge- 
bnndene,  durch  und  durch  kanstliche  Institution." — Daegun,  Mutterrecht  und 
Raubehe,  10.    Cf.  BeenhOft,  Staat  und  Recht  der  rOm.  KOnigszeit,  196  ff. 


CHAPTER  II 

THEORY  OF  THE  HORDE  AND  MOTHER-RIGHT 

[Bibliographical  Note  II. — A  pioneer  in  the  comparative  history 
of  marriage  and  the  family  is  Unger,  Die  Ehe  in  ihrer  ivelthistorischen 
Entwicklung  (Vienna,  1850),  who  notices  many  of  the  leading  phe- 
nomena connected  with  these  institutions  in  different  parts  of  the 
world ;  but  his  book  is  essentially  a  Tendenzschrift,  to  prove  the  ele- 
vating influence  of  Christianity  and  Teutonism.  The  literature  of  the 
Horde  and  Mother-Right  opens,  however,  with  Bachofen's  singular  but 
learned  treatise.  Das  Mutterrecht:  Eine  Untersuchung  iiber  die 
Gynaikokratie  der  alien  Welt  nach  ihrer  religiosen  und  rechtlichen 
Natur  (Stuttgart,  1861),  of  which  the  original  edition  is  now  exceed- 
ingly scarce,  although  there  is  an  exact  reprint  (Basel,  1897).  This 
work  is  supplemented  by  Bachofen's  Die  Sage  von  Tanaquil  (Heidel- 
berg, 1870),  and  his  Antiqudrische  Briefe  (Strassburg,  1886).  Upon  the 
Mutterrecht  was  based  Giraud-Teulon's  La  mire  chez  certains  peuples 
de  r antiquity  (Paris  and  Leipzig,  1867);  followed  by  Les  origines  de 
la  famille  (Geneva,  1874),  and  Les  origines  du  mariage  et  de  la  famille 
(Geneva  and  Paris,  1884),  in  both  of  which  Bachofen's  principal  con- 
clusions are  supported  with  much  new  material.  A  thoroughgoing 
disciple  of  the  same  school  is  Lippert,  Die  Geschichte  der  Familie 
(Stuttgart,  1884);  and  Kulturgeschichte  der  Menschheit  (Stuttgart, 
1886-87).  Very  important  also  in  this  connection  are  the  Mutterrecht 
und  Eaubehe  of  Dargun  (Breslau,  1883),  and  his  later  treatise,  Mutter- 
recht und  Vaterrecht  (Leipzig,  1892),  a  very  able  defense  of  the  theory 
of  mother-right  for  the  Aryan  peoples  after  the  separation,  though  con- 
ceding that  the  maternal  system  was  not  developed  in  the  primitive 
stage. 

A  scholar,  who  in  the  main  belongs  to  the  same  group  and  who  is 
one  of  the  foremost  students  of  the  laws  and  usages  of  savage  and  bar- 
barous peoples,  is  Post,  whose  more  important  writings  are  Die 
Geschlechtsgenossenschaft  der  Urzeit  (Oldenburg,  1875);  Der  Ur sprung 
des  Rechts  (Oldenburg,  1876);  Die  Anfdnge  des  Staats-  und  Rechts- 
lehen  (Oldenburg,  1878);  Die  Grundlagen  des  Rechts  (Oldenburg,  1884); 
Einleitung  in  das  Studium  der  ethnologischen  Jurisprudenz  (Olden- 
burg, 1886);  Afrikanische  Jurisprudenz  (Oldenburg  and  Leipzig,  1887); 
Studien  zur  Entwicklung sgeschichte  des  Familienrechts  (Oldenburg 
and  Leipzig,  1889);  and  "Die  Kodifikation  des  Rechts  der  Amaxosa  von 

33 


34  Matrimonial  Institutions 

1891,"  in  ZVR.,  XI.  The  last-named  paper  may  be  read  in  connection 
with  Rehme's  "Ueber  das  Recht  der  Amaxosa,"  in  ZVR.,  X;  Kohler's 
"Ueber  das  Negerrecht,  namentlich  in  Kamerun,"  ibid.,  XI;  Bertholon, 
"Les  formes  de  la  famille,"  in  Arch,  de  Vanth.  crim.,  VIII  (1893);  ZoUer, 
Forschungsreisen  in  der  Kolonie  Kamerun  (Berlin  and  Stuttgart,  1886); 
the  Kamerun  of  Buchner  (Leipzig,  1887);  Munzinger's  Ostafrikanische 
Studien  (Schaffhausen,  1864);  the  important  work  of  Fritsch,  Die  Ein- 
geborenen  Sud-Afrikas  (Breslau,  1872),  treating  of  the  family  customs 
of  various  aboriginal  tribes;  Kranz,  Natur-  und  Kulturleben  der  Zulus 
(Wiesbaden,  1880);  Kingsley,  Travels  in  West  Africa  (London,  1897); 
Tillinghast,  The  Negro  in  Africa  and  America  (New  York,  1902). 

By  entirely  different  routes  the  theories  of  universal  communism 
and  mother-right  were  reached  by  Lewis  H.  Morgan,  beginning  with 
the  League  of  the  Iroquois  (Rochester,  1851);  followed  by  his  great 
work  on  Systems  of  Consanguinity  and  Affinity  (Washington,  1871); 
the  systematic  treatise  entitled  Ancient  Society  (New  York,  1878);  and 
the  Houses  and  House-Life  of  the  American  Aborigines  (Washington, 
1881);  and  by  J.  P.  McLennan,  Primitive  Marriage  (1865);  reprinted 
with  other  papers  as  Studies  in  Ancient  History  (London,  1876).  After 
the  author's  death  appeared  the  Patriarchal  Theory  (London,  1885), 
edited  and  completed  by  his  brother  Donald  McLennan;  and  the  second 
series  of  Studies  (London  and  New  York,  1896),  edited  by  his  widow  and 
Arthur  Piatt. 

Sir  John  Lubbock,  Origin  of  Civilization  (New  York,  1889),  main- 
tains the  theory  and  introduces  the  name  of  "communal  marriage." 
McLennan  is  in  the  main  supported  by  Robertson  Smith,  Kinship  and 
Marriage  in  Early  Arabia  (Cambridge,  1885).  This  book  may  be  read 
in  connection  with  Wilken,  Das  Matriarchat  bei  den  alien  Arabern 
(Leipzig,  1884);  Kohler,  "  Vorislamitisches  Recht  der  Araber,"  in  ZVR., 
VIII;  Friedrichs,  "Das  Eherecht  des  Islams,"  ibid.,  VII;  Vincenti,  Die 
Ehe  im  Islam  (Vienna,  1876) ;  Pischon,  Der  Einfluss  des  Islams  auf 
das  hdusliche,  soziale,  und  politische  Leben  seiner  Bekenner  (Leipzig, 
1881);  Perron,  Femme  arabe  (Paris  and  Alger,  1858);  Kremer,  Kultur- 
geschichte  des  Orients  unter  den  Kalifen  (Vienna,  1875);  V^mbery, 
Der  Islam  im  neunzehnten  Jahrhundert  (Leipzig,  1875);  his  TiXrken- 
volk  (Leipzig,  1885);  Hanoteau  and  Letourneux,  La  kabylie  et  les  cou- 
tumes  kabyles  (Paris,  1893);  and  Baway,  "The  Marriage  Customs  of  the 
Moors  of  Ceylon,"  in  Journal  of  the  Royal  Asiatic  Society,  Ceylon 
Branch,  1887-88,  X,  219-33  (Colombo,  1888).  Read  also  Redhouse,  Notes 
on  Tylor's  'Arabian  Matriarchate,'  propounded  by  Tylor  before  the 
British  Association,  Montreal,  1884. 

For  the  matrimonial  institutions  of  the  Australian  aborigines, 
whose  so-called  "  group-marriage  "  has  played  so  great  a  part  in  specu- 
lation, see    especially    Fison    and    Howitt,   Kamilaroi   and   Kurnai 


Theory  of  the  Horde  and  Mother-Right     35 

(Melbourne,  1880),  supplemented  by  their  "Deme  and  the  Horde,"  in 
Journal  of  the  Anth.  Inst.,  XIV,  142-68  (London,  1885),  comparing 
Attic  and  Australian  classes  and  local  divisions;  Fison's  article  on 
"Primitive  Marriage,"  in  Pop.  Sci.  Monthly ,  X.Y11  (New  York,  1880); 
his  paper  on  "  Classificatory  Systems  of  Relationship,"  in  Brit.  Assoc. 
Adv.  Sci.  (Oxford,  1894);  Howitt's  "Remarks  on  the  Class  Systems  Col- 
lected by  Mr.  Palmer,"  in  Journal  of  the  Anth.  Inst.,  XIII,  335-46 
(London,  1884);  his  "Dieri  and  Other  Kindred  Tribes  of  Central  Aus- 
tralia," t6id.,  XX;  "Further  Notes  on  the  Australian  Class  Systems," 
ibid.,  XVIII,  31-36  (London,  1889);  "Organization  of  Australian 
Tribes,"  in  Trans.  Roy.  Soc.  of  Victoria,  I,  Part  II  (1889);  and  his 
"Australian  Group  Relations,"  in  Rep.  Smith.  Inst.,  1883  (Washington, 
1885).  Important  also  are  Cunow,  Die  Verwandtschafts-Organi- 
sationen  der  Australneger  (Stuttgart,  1894),  supplementing  Morgan's 
Ancient  Society,  while  rejecting  some  of  Morgan's  and  Fison's  conclu- 
sions; Kohler,  " Das  Recht  der  Australneger,"  in  ZVR.,  VII;  his  later 
Zur  Urgeschichte  der  Ehe  below  named;  McLennan,  Studies,  II,  278- 
310;  Curr,  The  Australian  Race  (Melbourne,  1886),  rejecting  the  theory 
of  "group-marriage"  and  promiscuity;  especially  Roth's  North- West- 
Central  Queensland  Aborigines  (Brisbane  and  London,  1899) ;  and 
Spencer  and  Gillen's  very  able  and  detailed  account  of  the  Native 
Tribes  of  Central  Australia  (New  York  and  London,  1899),  both  of 
which  works,  like  those  of  Kohler,  tend  to  sustain  the  general,  though 
not  all  the  incidental,  conclusions  of  Fison  and  Howitt.  Among  the 
many  papers  and  books  useful  for  studying  the  social  life  of  the  Aus- 
tralians are  Palmer,  "Notes  on  Some  Australian  Tribes,"  in  Journal 
of  the  Anth.  Inst,  XIII  (London,  1884);  Mathew,  "The  Australian 
Aborigines,"  in  Journal  of  the  Royal  Society  of  New  South  Wales, 
XXIII  (Sydney,  1889) ;  Mathews,  "Australian  Class  Systems,"  in  The 
Am.  Anthropologist,  IX,  X  (Washington,  1896-97);  and  his  "The  Vic- 
torian Aborigines,"  ibid.,  XI  (Washington,  1898).  Supplementary 
materials  may  likewise  be  found  in  Dawson,  Australian  Aborigines 
(Melbourne,  Sydney,  and  Adelaide,  1881);  Jung,  Das  Welttheil  Austra- 
lien  (Leipzig,  1882);  Smyth,  Aborigines  of  Victoria  (London,  1878); 
Smith  and  Stewart's  The  Booandik  Tribe  (1880);  Lang,  (SociaZ  Origins; 
Atkinson,  Primal  Law  (published  together,  London,  New  York,  and 
Bombay,  1903);  and  especially  Crawley,  Mystic  Rose  (London  and  New 
York,  1902). 

McLennan  was  first  systematically  and  luminously  criticised  by 
Spencer,  in  Part  III  of  his  Principles  of  Sociology  (published,  in  parts, 
1874-77;  complete.  New  York,  1879).  McLennan  replied  in  two  articles 
in  fixe  Fortnightly  Review,  XXNll  (London,  1877);  and  in  turn  Spencer 
has  a  "Rejoinder,"  reprinted  in  his  Various  Fragments  (New  York, 
1898).    Gomme  supplements  McLennan's  evidences  for  his  "Theory  of 


36  Matrimonial  Institutions 

the  Primitive  Horde,"  in  Journal  of  Anth.  Inst.,  XVII  (London,  1888); 
and  this  article  is  criticised  by  Wake,  Primitive  Human  Horde, 
reprinted  from  ibid.,  February,  1888.  Morgan  is  supported  by  Engels, 
Ursprung  der  Familie  (Stuttgart,  1892).  His  researches  are  apprecia- 
tively reviewed  and  supplemented  by  Bernhoft,  Verwandtschaftsnamen 
und  Eheformen dernord  amerikanischen  Volksstdmme  (Rostock,  1888); 
and  they  are  criticised  by  Lubbock,  "  On  the  Development  of  Relation- 
ships," in  Journal  of  Anth.  Inst.,  I  (London,  1872).  The  views  of 
Morgan  and  McLennan  are  examined  by  Wake  in  his  "  Classificatory 
Systems  of  Relationship,"  i6id.,  VIII  (London,  1879);  and  his  "Primi- 
tive Human  Family,"  ibid.,  IX  (London,  1880).  See  also  his  "  Nature 
and  Origin  of  Group  Marriage,"  ibid.,  XIII  (London,  1884);  and  his  Le 
mariage  communal  (Paris,  1875),  replying  to  Barbier.  An  able  con- 
servative writer,  vigorously  and  learnedly  attacking  the  fundamental 
conclusions  of  recent  sociological  and  ethnological  science,  is  Schneider, 
Die  Naturvolker :  Missverstdndnisse,  Missdeutungen  und  Misshand- 
lungen  (Paderborn  and  Miinster,  1885-86).  He  is  severely  criticised  by 
Hellwald,  whose  Menschliche  Familie  (Leipzig,  1889)  is  one  of  the  most 
original  contributions  to  our  subject.  This  was  preceded  by  the  same 
writer's  Kulturgeschichte  (3d  ed.,  Augsburg,  1883).  Important  mono- 
graphs are  Bobbio,  Sulle  origine  e  sid  fondamento  delta  famiglia 
(Turin,  1891);  and  the  clear  summary  of  Th.  Achelis,  Die  Entwicklung 
der  Ehe  (Berlin,  1893);  which  may  be  read  in  connection  with  Dr.  A. 
Achelis's  "Geschlechtsgenossenschaft,"  in  Zeitschrift  der  Gesellschaft 
filrErdkunde,  No.  148  (Berlin,  1890).  Of  service  also  in  connection  with 
various  topics  are  Cunow,  "Die  Okonomischen  Grundlagen  der  Mutter- 
herrschaft,"  in  Neue  Zeit,  No.  4,  XVI.  Jahrg.,  I.  Band  (Stuttgart,  1897); 
Ploss,  "  Ueber  das  Heirathsalter  der  Frauen  bei  verschiedenen  Volkern," 
in  Mittheilungen  der  Ver.fur  Erdkunde,  1872  (Leipzig,  1873);  Redslob, 
Levirats-Ehe  bei  den Hebrdern  (Leipzig,  1836);  Danks,  "Marriage  Cus- 
toms of  the  New  Britain  Group,"  in  Journal  of  Anth.  Inst.,  XVIII, 
No.  3;  Roth,  "Significance  of  the  Couvade,"  ibid.,  XXII  (London,  1893); 
Peal,  "  On  the  '  Morong,'  as  Possibly  a  Relic  of  Pre-Marriage  Commu- 
nism," ibid.,  XXII;  Ellis,  "On  Polyandry,"  in  Pop.  Sci.  Monthly, 
October,  1891;  idem,  Tschi-Speaking  Peoples  (London,  1887);  idem, 
Ewe-Speaking  Peoples  (London,  1890);  Brouardel,  L'infanticide  (Paris, 
1897);  Frazer,  Totemism  (Edinburgh,  1887);  Peet,  "Tribal  Records  in 
the  Effigies,"  in  Am.  Antiquarian,  XV  (Chicago,  1893);  Lubbock, 
"  Social  and  Religious  Condition  of  the  Lower  Races  of  Man,"  Rep. 
Smith.  Inst,  1869  (Washington,  1872);  Strieker,  " Untersuchungen 
uber  die  kriegerischen  Weiber,"  in  Archiv  fur  Anthropologie,  V;  his 
Amxxzonen  in  Sage  und  Gesehichte  (Berlin,  1868);  Avery,  "Races  of  the 
Indo-Pacific  Oceans,"  in  Am.  Antiquarian,  VI  (Chicago,  1884);  Green- 
wood, The  Wild  Man  at  Home  (London,  n.  d.);  Peschel,  Races  of  Man 


Theoey  of  the  Horde  and  Mother-Right     37 

(London,  1889);  Zmigrodski's  interesting  Die  Mutter  bet  den  Volkern 
des  arischen  Stammes  (Munich,  1886);  Peet,  "Houses  and  House-Life 
among  the  Pre-Historic  Races,"  in  Am.  Antiquarian,  X  (Chicago,  1888), 
taking  the  same  general  view  as  Morgan ;  and  his  "  Earliest  Abodes  of 
Men,"  ibid.,  XV  (Chicago,  1893).  To  bring  criticism  down  to  date  read 
Tillier's  able  and  suggestive  book  Le  mariage:  sa  gen^se,  son  Evolu- 
tion (Paris,  1898);  Tylor,  "The  Matriarchal  Family,"  in  Nineteenth 
Century, ^Ij,  81  (July,  1896);  Kohler,  Zur  Urgeschichte  der  Ehe  (Stutt- 
gart, 1897);  Giddings,  PrmcipZes  of  Sociology  (New  York  and  London, 
1896);  and  especially  the  discussions  of  the  matriarchate,  the  forms  of 
marriage,  and  similar  topics  by  Abrikossoflf,  Westermarck,  Letourneau, 
Kovalevski,  and  others  in  Annates  de  Vinstitut  international  (Paris, 
1896). 

A  mass  of  materials  relating  to  every  phase  of  the  subject  for  many 
peoples  may  be  found  in  the  large  general  works  of  Klemm,  Cultur- 
Geschichte  der  Menschheit  (Leipzig,  1843-52);  Waitz-Gerland,  Anthro- 
pologic der  Naturvolker  (Leipzig,  1860-72;  2d  ed.,  begun  1877); 
Featherman,  Social  History  of  the  Races  of  Mankind  (London,  1881- 
91);  and  Ratzel,  History  of  Mankind  (London  and  New  York,  1896-98). 
General  summaries  are  given  by  Adams,  "  Primitive  Rights  of  Women," 
in  Historical  Essays  (New  York,  1891);  McGee,  "The  Beginnings  of 
Marriage,"  in  Am.  Anthropologist,  IX  (Washington,  1896);  Solotaroff, 
"Origin  of  the  Family,"  ibid.,  XI  (Washington,  1898);  Nadaillac, L'^woZm- 
tion  du  mariage  (Paris,  1893);  Brinton, "  Religions  of  Primitive  Peoples," 
in  his  American  Lectures,  2d  series  (New  York  and  London,  1897); 
Devas,  Studies  in  Family  Life  (London  and  New  York,  1886);  Lang, 
"Early  History  of  the  Family,"  in  his  Custom  and  Myth  (London,  1884); 
Miln,  Wooings  and  Weddings  (Chicago,  1900);  and  Hutchinson's  popu- 
lar Marriage  Customs  in  Many  Lands  (London,  1897).  An  earlier  book, 
inferior  though  similar  in  scope  to  the  one  last  named,  is  Hamilton's 
Marriage  Rites,  Customs,  and  Ceremonies  (London,  1822).  Of  little 
value,  except  as  marking  the  beginning  of  attempts  to  write  general 
histories,  are  Moore,  Marriage  Customs  (London,  1814;  2d  ed.,  1820); 
Laumier,  C4rSmonies  nuptiales  (Paris,  1829);  the  amonymous  Hoch- 
zeitsgebrduche  aller  Nationen  (Swabach,  1783);  and  Hurtaut's  Coup 
d'oeil  anglois  sur  les  c4r4monies  du  mariage  (Geneva,  1750),  compiled 
from  Louis  de  Gaya's  C4r4monies  nuptiales  (original  ed.,  Paris,  1680). 
The  subject  is  also  treated  by  Schroeder,  Das  Recht  in  der  geschlecht- 
lichen  Ordnung  (Berlin,  1893);  Gage,  Woman,  Church,  and  State 
(Chicago,  1893);  and  Mason,  Woman's  Share  in  Primitive  Culture 
(New  York,  1894).  Mucke,  Horde  und  Familie  (Stuttgart,  1895),  traces 
the  classificatory  systems  of  kinship  to  original  "space-relationships" 
in  the  horde  camping-place,  and  the  work  is  a  remarkable  example  of 
ingenious  though  fantastic  speculation  on  a  large  scale. 


38  Matrimonial  Institutions 

For  the  matrimonial  customs  of  low  races,  especially  valuable  are 
Krause,  Die  Tlinkit-Indianer  (Jena,  1885);  Marshall,  A  Phrenologist 
amongst  the  Todas  (London,  1873);  and  the  magnificent  volumes  of 
Paul  and  Fritz  Sarasin,  Die  Weddas  von  Ceylon  (Wiesbaden,  1892-93). 
For  examples  of  sexual  practices,  commonly  regarded  as  survivals  of 
original  promiscuity,  see  Buch,  Die  Wotjdken  (Helsingfors,  1882) 
Kohler,  "Studien  uber  Frauengemeinschaft,"  in  ZVR.,  V;  Bastian 
Rechtsverhdltnisse  (Berlin,  1872);  his  "  Eheverhaltnisse,"  in  ZF£.,  VI 
and  his  "Matriarchat  und  Patriarchat,"  ibid.,  Verhandlungen  (Berlin 
1886);  Ploss,  Das  Weib  (Leipzig,  1895);  his  Das  Kind  (Leipzig,  1884) 
and  Mantegazza's  Geschlechtsverhdltnisse  des  Menschen,  constituting 
with  the  earlier  Physiologie  der  Liebe  and  Hygiene  der  Liebe  his 
so-called  "  trilogy  of  love."  For  the  bearings  of  phallicism  on  the  sub- 
ject read  Howard's  Sex  Worship  (2d  ed.,  Washington,  1898),  containing 
a  bibliography.  In  this  connection  are  also  of  service  the  works  on 
"  seignorial  right,"  the  most  elaborate  monograph  being  Schmidt's  Jus 
primae  noctis  (Freiburg,  1881),  containing  a  full  bibliography.  See 
also  his  Slavische  Geschichtsquellen  zur  Streitfrage  ilber  das  Jus 
Primae  Noctis  (Posen,  1886);  his  paper  in  ZFE.,  XVI;  and  Kohler's 
criticism,  ZVR.,  IV,  V.  Against  its  existence  as  a  right  of  the  mediaeval 
lord  are  Veuillot,  Droit  du  seigneur  (1st  ed.,  Paris,  1854 ;  3d  ed.,  1878); 
Raepsaet,  Recherches  (Gand,  1817);  Barthelemy,  "  Droit  du  seigneur," 
in  Revue  des  questions  historiques,  I  (Paris,  1866),  a  critical  paper  of 
value ;  and  Labessade,  Droit  du  seigneur  et  la  rosi^re  de  Salency 
(Paris,  1878).  In  his  Riponse  (Paris,  1857)  Delpit  makes  a  vigorous  and 
detailed  reply  to  the  arguments  of  Veuillot  (early  edition).  See  also 
Foras,  Droit  du  seigneur  (Chamb^ry,  1886);  and,  for  comparison,  read 
"  Bibliophile's  "  Les  nuits  d'ipreuve  des  villageoises  allemandes  avant 
le  mariage  (Brussels,  1877);  Grupen's  quaint  De  uxore  theotisca  (Got- 
tingen,  1748);  and  Fischer's  remarkably  valuable  and  interesting 
Probendchte  der  teutschen  Bauernmddchen  (Berlin  and  Leipzig,  1780 ; 
reprinted,  Leipzig,  1898). 

To  "  break  ground  "  for  the  study  of  the  subject  it  may  be  well  in 
the  outset  to  read  chaps,  iii  and  iv  of  Posada's  Theories  modemes; 
Kautsky's  "Entstehung  der  Ehe  und  Familie,"  in  Kosmos,  XII; 
Friedrichs,  "  Ursprung  des  Matriarchats,"  in  ZVR.,  VIII,  in  connec- 
tion with  his  "  Zur  Matriarchatsfrage,"  in  ZFE.,  XX ;  and  especially  his 
"Familienstufen  und  Eheformen,"  in  ZVR.,  X.  The  literature  and  the 
theories  are  also  reviewed  by  Bernhof t,  "  Zur  Gesch.  des  eur.  Familien- 
rechts,"  ibid.,  VIII ;  and  Schurman  gives  an  interesting  summary  and 
criticism  in  Ethical  Import  of  Darwinism  (New  York,  1888). 

For  the  works  of  Wake,  Letourneau,  Starcke,  Westermarck,  and 
other  antagonists  of  the  horde  theory,  see  Bibliographical  Notb 
III.] 


Theory  op  the  Horde  and  Mother-Right     39 

i.  bachofen  and  his  disciples 
In  the  same  year  with  the  Ancient  Law  appeared  a  book 
which  was  destined  to  have  an  extraordinary  influence  in 
giving  a  new  direction  to  speculation  and  research.  This 
was  the  Mutterrecht  of  the  Swiss  scholar  Johann  Jacob 
Bachofen,  whose  memory  is  revered  by  many  followers.* 
The  author  shows  a  wide  and  minute  acquaintance  with 
classic  literature  and  the  early  myths;  but  his  work  is  fan- 
tastic and  almost  wholly  devoid  of  scientific  method.^  The 
material  is  drawn  mainly  from  two  sources :  the  fragmentary 
notices  of  the  rules  of  kinship  and  the  matrimonial  customs 
of  various  peoples  handed  down  from  ancient  writers,  sup- 
plemented slightly  through  similar  accounts  by  modern 
travelers;  and  an  interpretation  of  the  supposed  symbolism 
of  religious  myths,  particularly  those  of  the  Greeks.^  The 
inferences  derived  from  this  second  source  are  often  far- 
fetched and  fanciful  in  the  extreme.  Though  the  general 
results  of  the  investigation  are  summarized  in  a  short  intro- 
duction, the  argument  is  so  loose,  the  arrangement  so  con- 

1  See,  for  example,  Lippert,  Geschichte  der  Familie,  4,  5;  Kohlee,  in  ZVR.,  IV, 
266  ff.,  who  regards  Bachofen  as  the  "Altmeister  der  ethnologischen  Jurisprudenz;" 
and  Gieadd-Tedlon,  Mariage  et  lafamille,  146  £f.,  passim.  Cf.  Kautsky,  in  Kosmos, 
XII,  348. 

2DELBEt)CK,  "Das  Mutterrecht  bei  den  Indogermanen,"  in  Preussische  Jahr- 
bUcher,  XCVII,  15,  characterizes  the  work  as  "fantastic,"  though  resting  upon  "einer 
flusserst  ausgebreiteten  Gelehrsamkeit."  De.  Staecke's  criticism  is  too  severe: 
"We  should  rather  call  his  'Mutterrecht'  the  rhapsody  of  a  well-informed  poet  than 
the  work  of  a  calm  and  clear-sighted  man  of  science." — Primitive  Family,  243.  For 
the  best  analysis  of  Bachofen,  see  ibid.,  241-51.  Cf.  also  BeenhOft,  "Zur  Geschichte 
des  eur.  Familienrechts,"  in  ZVR.,  VIII,  4,  5;  Lubbock,  Origin  of  Civilization,  98  ff. ; 
McLennan,  Studies  in  Ancient  History,  I,  319-25;  Gieadd-Teulon,  La  mdre  chez 
certains  peuples  de  VantiquitS,  6  ff. ;  Zmigeodski,  Die  Mutter,  178  ff.,  196  ff.,  311  ff., 
passim;  Schmidt,  Jus  primae  noctis,  31,  36-38,  178,  190;  Wake,  Marriage  and  Kiiv 
ship,  14  ff.,  257,  258;  Kautsky,  "  Die  Entstehung  der  Ehe  und  Familie,"  Kosmos,  XII, 
256,  257,  848 ;  Achelis,  Die  Entwicklung  der  Ehe,  6  ff . ;  Posada,  Theories  modernes, 
47  ff.,  148;  Chambeelain,  The  Child  and  Childhood  in  Folk-Thought,  12  ff. 

3  The  author  first  discusses  the  account  given  by  Herodotus  and  others  of 
Lycian  customs,  which  account,  he  declares,  contains  the  clearest  and  most  valu- 
able evidence  of  the  existence  and  character  of  Mutterrecht  (v).  Then  follows  a 
similar  treatment  of  the  evidence  derived  from  Crete,  Athens,  Lemnos,  Egypt,  India 
and  central  Asia,  Orchomenos  and  the  Minyoe,  Epizephyrian  Locris,  Elis,  Lesbos, 
Mantinea,  the  Cantabrians,  and  from  the  Pythagorean  system. 


40  Matrimonial  Institutions 

fusing,  and  the  style  so  obscure  that  it  is  with  the  utmost 
difficulty  the  author's  meaning  can  be  gathered.  Neverthe- 
A  ^  less  it  is  undeniable  that  he  has  created  the  terminology  and 
developed  the  essential  elements  of  the  communistic  and 
gynocratic  theories  even  in  their  leading  details. 

According  to  Bachofen,  there  are  three  general  phases 
in  the  evolution  of  human  sexual  relations.  The  first  is  the 
''period  of  aphrodistic  hetairism,  in  which  men  and  women 
at^ifS'jtpf. I;.f4i a ve  each  other  in  common;  the  second  is  the  period  of 
demetrian  mother-right  or  gynocracy,  in  which  kinship  and 
succession  are  in  the  maternal  line  and  woman  gains  religious 
and  political  supremacy;  and  the  third,  the  period  of  the 
patriarchate  or  apoUonistic  father-right,  in  which  the  more 
spiritual  principle  of  paternity  is  triumphant.'  Each  of  these 
periods  is  regarded  as  a  universal  culture-stage.^ 

In  the  first  phase,  or  that  of  the  unregulated  communism, 
material  motherhood  is  the  essential  fact.  Fatherhood  is 
necessarily  uncertain.  There  is  no  conception  of  kinship 
between  father  and  child.  Woman,  it  is  assumed,  is  exposed 
to  the  lust  or  sexual  tyranny  of  man;  and  it  is  through  her 
successful  revolt  against  the  bondage  of  unbridled  hetairism 
that  she  attains  the  second  stage  of  progress.'  The  period 
of  demetrian  gynocracy  is  therefore  represented  as  a  turning- 
point,  a  transitional  phase,  through  which  humanity  passes 
;j,^-^Vrt'^  from  its  lowest  to  its  highest  status.  With  it  the  rudiments 
of  marriage  appear,  but  combined  with  hetairism  surviving 
in  various  forms  or  gradations.  It  is  the  woman  and  not 
the  man  who  obeys  the  marriage  law.*     Indeed,  strict  mar- 

1  Das  Mutterrecht,  vi,  xviii-xix,  xxi,  passim. 

2  Ibid.,  vi.  "  Wie  auf  die  Periode  des  Mutterrechts  die  Herrschaft  der  Paternitat 
folgt,  so  geht  jener  eine  Zeit  des  regellosen  Hetarismus  voran." — Ibid.,  zviii.  For 
many  illustrations,  see  the  Index  at  "Aphrodite,"  "Demeter,"  and  "Apollo,"  the 
names  of  the  divinities  presiding  respectively  over  the  three  phases. 

3"Es  kann  nicht  verkannt  werden:  die  Gynaikokratie  hat  sich  ftberall  in  be- 
wusstem  und  fortgesetztem  Widerstande  der  Frau,  gegen  den  sie  erniedrigendea 
Hetarismus  hervorgebildet,  befestigt,  erhalten."— 76td.,  xix ;  cf.  xviii,  17-18. 

*  Ibid.,  18,  passim.    Cf.  Staecke,  245. 


Theory  of  the  Horde  and  Mother-Right     41 

riage,  the  exclusive  appropriation  of  a  woman  by  one  man, 
is  looked  upon  as  an  abridgment  of  a  natural  or  religious 
right  for  which  expiation  must  be  rendered  to  the  goddess 
whose  law  is  violated ; '  and  only  thus,  as  a  penalty  or  com- 
position for  the  privilege  of  restricted  intercourse,  can  be 
rationally  explained  those  lascivious  customs,  such  as  tem- 
porary prostitution,  so  often  found  in  connection  with  legal 
marriage.^ 

A  difficulty,  however,  presents  itself.  The  theory  of 
Bachofen  assumes,  as  a  general  fact  in  social  evolution,  that 
a  period  of  promiscuity  and  oppression  of  the  female  sex  is 
followed,  not  merely  by  an  age  of  mother-right,  involving  as 
a  necessary  consequence  of  the  continued  uncertainty  of 
fatherhood  the  recognition  of  kinship  only,  in  the  maternal 

Lline ;  but by_an  ag;e,pJ..gynocracy,  involving  the  social  lead- 
ership of  women  and  eventually  the  political  and  even  the 
military  subordination  of  men.  Woman  emancipates  her- 
self, and- th^n  she  becomes  an  Amazon.  "Weary  of  the  lust 
of  man,  she  first  feels  a  longing  for  a  securer  position  and  a 
purer  existence.  The  feeling  of  shame  and  the  rage  of 
despair  inflame  her  to  armed  resistance."^  As  "a  rival  to 
man,  the  Amazon  became  hostile  to  him,  and  began  to 
withdraw  from  marriage  and  from  motherhood.  This  set 
limits  to  the  rule  of  women,  and  provoked  the  punishment 
of  heaven  and  men.     Thus  Jason  put  an  end  to  the  rule  of 

1 "  Das  demetrische  Prinzip  erscheint  als  die  Beaintrachtigung  eines  dntgegen- 

gesetzten  ursprlinglichern,  die  Ehe  selbst  als  Verletzung  eines  Eeligionsgebots 

Nur  aus  ihm  erlautert  sich  der  Gedanke,  dass  die  Ehe  eine  Siihne  jener  Gottheit 
verlangt,  deren  Gesetz  sie  durch  Ausschliesslichkeit  verletzt.  Nicht  um  in  den 
Armen  eines  Einzelnen  zu  verwelken,  wird  das  Weib  von  der  Natur  mit  alien  Rei- 
zen,  tiber  welche  sie  gebietet,  ausgestattet ;  das  Gesetz  des  Stoffes  verwirft  alle 
Beschrankung,  hasst  alle  Fesseln,  und  betrachtet  jede  Ausschliesslichkeit  als  Ver- 
sfindung  an  ihrer  GOttlichkeit." — Das  Mutterrecht,  xix.  In  general,  on  the  antago- 
nism of  Aphrodite  to  marriage,  see  ibid.,  13,  71, 134, 137,  310,  320,  325. 

2  "  Die  Prostitution  wird  selbst  eine  Bflrgschaft  der  ehelichen  Keuschheit,  deren 
Heilighaltung  eine  vorausgegangene  Erfflllung  des  natflrlichen  Berufes  Ton  Seita 
der  Fran  erfordert."— /6id.,  xix. 

3  Ibid.,  xxiv. 


42  Matrimonial  Institutions 

the  Amazons  in  Lemnos;    thus  Dionysos  and  Bellerophon 
strove    together,  passionately,    yet    without    obtaining    any 
decisive  victory,  until  Apollo  with  calm  superiority  finally 
became    the    conqueror;'"    and  so  the  purer   principle  of 
fatherhood  prevailed  and  the  era  of  father-right  appeared. 
But,  says    Bachofen,  that   woman   should   gain  supremacy 
/  over  man  arouses  our  astonishment,  because  the  fact  is  cqn- 
Jl    trary  to  what  we  should  expect  from  their  relative  physical 
powers.     "  The  law  of  nature  delivers  the  scepter  of  power  to 
^.__^the  stronger."     The  paradox,  however,  is  easily  explained. 
V^t  all  times  woman  has  exerted  the  most  powerful  influence 
^^         iipon   man,  upon    the    culture    and    morals   (Gesellung)   of 
C^'vVP         ]|)eoples,"   through   the   direction  of  her  mind  toward  the 


^>- 


if^\v^    .w    supernatural,  the  wonderful,  and  the  divine.     Through  her 

j)*^^        possession  of  the  mysteries  of  religion  she  deprived  man 

>  .Li}        of    the    superior   position    which    nature    had   given   him. 

V-  itt''  "J  --v,  "Religion  is  the  only  efficient  lever  of  all  civilization.    Each 

^  elevation  and  depression  of  human  life  has  its  origin  in  a 

movement   which    begins   in    this    supreme    department."" 

"Just  as  the  child  receives    its    first   discipline  from  the 

mother,  so  do  peoples  receive  it  from  woman.     The  man 

must  serve  before  he  can  attain  supremacy.     To  the  wife 

alone  it  is  given  to  tame  the  unbridled  power  of  man  and  to 

guide  him  in  the  path  of  well-doing."^    But  amazonism  was 

a  shock  to  the  religious  feeling  in  the  stage  of  mother-right, 

just  as  gross  hetairism  was  an  ofiPense  in  the  former  period. 

1  Staecke,  Primitive  Family,  246.  On  the  Amazon  myth  see  Bachofen,  Das 
Mutterrecht,  xxiv  ff.,  85.  For  many  examples  of  amazonism  noticed  in  the  work  see 
Index  at  "Amazonen; "  and  compare  Qieadd-Teulon,  Mariage  et  lafamille,  302-28, 
who  accepts  the  view  of  Bachofen  and  gives  an  elaborate  discussion.  According  to 
KoVALEVSKT,  Mod.  Customs  and  Ancient  Laws  of  Russia,  16  ff.,  there  are  evidences 
of  amazonism  found  among  the  Slavs.  Compare  Steickee,  "  Untersuchungen  Qber 
die  kriegerischen  Weiber,"  Archiv  fiir  Anthropologic,  V;  and  his  Amazonen  in  Sage 
und  Geschichte, 

2  Das  Mutterrecht,  xiii,  xiv.  See  Staecke's  fine  translation  of  these  passages, 
op,  cit.,  243-45. 

3  Das  Mutterrecht,  19;  cf.  Staecke,  245. 


Theory  of  the  Horde  and  Mother-Right     43 

Hence  arose  a  striving  for  the  realization  of  a  higher  con- 
ception of  social  relations.  "It  was  the  assertion  of  father- 
hood which  delivered  the  mind  from  natural  appearances, 
and  when  this  was  successfully  achieved,  human  existence 
was  raised  above  the  laws  of  material  life.  The  principle  of 
motherhood  is  common  to  all  the  species  of  animal  life,  but 
man  goes  beyond  this  tie  in  giving  the  pre-eminence  to  the 
power  of  procreation,  and  thus  becomes  conscious  of  his 
higher  vocation In  the  paternal  and  spiritual  prin- 
ciple he  breaks  through  the  bonds  of  tellurism  and  looks 
upward  to  the  higher  regions  of  the  cosmos.  Victorious 
fatherhood  thus  becomes  as  distinctly  connected  with  the 
heavenly  light  as  prolific  motherhood  is  with  the  teeming 
earth."'  "All  the  stages  of  sexual  life,  from  aphrodistic 
hetairism  to  the  apollonistic  purity  of  fatherhood,  have  their 
corresponding  type  in  the  stages  of  natural  life,  from  the 
wild  vegetation  of  the  morass,  the  prototype  of  conjugal 
motherhood,  to  the  harmonic  law  of  the  Uranian  world,  to 
the  heavenly  light  which,  as  the  flamma  non  urens,  corre- 
sponds to  the  eternal  youth  of  fatherhood.  The  connection 
is  so  completely  in  accordance  with  law,  that  the  form  taken 
by  the  sexual  relations  of  life  may  be  inferred  from  the  pre- 
dominance of  one  or  the  other  of  these  universal  substances 
in  worship."  ^ 

The  theories  of  Bachofen  have  given  rise  to  luxurious 
speculation.  With  slight  modification  his  conclusions  have 
been  accepted  by  a  host  of  faithful  disciples.  By  others 
they  have  been  criticised  or  abandoned.  Various  schemes 
have  been  constructed  in  the  attempt  to  explain  the  sequence 
in  which  the  forms  of  marriage  and  the  phases  of  the  family 
have  historically  appeared.  With  the  literature-<jf  this 
speculation,  so  far  as  primitive  communism  is  assumed,  the 

iStaecke's  summary,  op.  cit.,  244;  Bachofen,  xxvii. 
2  Staecke's  summary,  op.  cit.,  244,  245;  Bachofen,  xxix. 


44  Matrimonial  Institutions 

present  chapter  is  concerned.  As  a  rule,  only  the  incidental 
or  negative  results  of  criticism  will  be  noticed,  leaving  for 
the  following  two  chapters  the  criticism  originating  in  a 
wholly  different  view  of  social  evolution. 

It  is  convenient  in  the  outset  to  note  the  importance  of 
carefully  distinguishing  between  the  conception  of  mother- 
right,  implying  kinship  in  the  female  line,  and  that  of 
gynocracy,  denoting  the  supremacy  of  the  female  sex.' 
Bachofen,  as  already  seen,  uses  Mutterrecht  as  compre- 
hending gynocracy;  while  some  of  his  followers  likewise 
speak  confidently  of  a  time  when  women  took  social  prece- 
dence of  men,  or  even  held  them  in  political  subjection. 
Such  is  the  view  of  Giraud-Teulon,  who,  with  Bachofen, 
interprets  the  Amazon  myth  as  implying  an  age  in  which 
women  exercised  a  decided  social  and  political  ^domination.'' 
Lippert  and  Unger  take  a  similar  position.*  On  the  other 
hand,  it  is  maintained  by  a  number  of  writers,  who  reject 
the  idea  of  a  political  or  military  gynocracy,  that  the  inheri- 

iFeiedeichs,  "  Familienstufen  tind  Eheformen,"  ZVR.,  X,  190, 191,  rejects  the 
nse  of  Mutterrecht  as  being  practically  of  "  no  significance,"  preferring  Matriarchal 
(from  apxei>'  =  "  to  lead")  to  denote  the  uterine  system  of  relationship;  and  Gynai- 
kokratie,  "gynocracy"  (from  Kpa.Teli'=  "to  rule")  to  express  the  idea  of  the  domina- 
tion of  women  over  men.  "Gynocracy"  is  used  to  express  this  idea  by  the  Jesuit 
Lafitau  {Moeurs  des  sauvages,  1724),  borrowed  from  Steabo  (Geogr.,  lib.  iii)  ; 
Peschel,  Races  of  Man,  234;  Ploss,  Das  Kind,  II,  393.  Mucke,  Horde  und  Familie, 
108  ff.,  114  ff.,  174  ff.,  passim,  rejects  the  use  of  Mutterrecht  and  Vaterrecht,  and 
adopts  the  terms  "gynocratic"  and  "androcratic"  family;  but  these  designations 
had  already  been  employed  by  other  writers,  e.  g.,  by  Ploss,  op.  cit.,  II,  393-96. 
"  Metrocracy  "  also  appears :  Westeemaeck,  Human  Marriage,  98. 

But  Dargun's  use  of  Mutterrecht  and  Vaterrecht  to  express  maternal  or  paternal 
kinship,  and  Matriarchal  and  Patriarchat  to  express  maternal  or  paternal  power, 
seems  preferable,  in  order  to  avoid  confusing  the  two  conceptions;  see  above,  chap, 
i,  p.  21.  Compare  further  Grosse,  Die  Formen  der  Familie,  11,  who  uses  Mutterfolge 
and  Vaterfolge  respectively  as  opposed  to  Matriarchal  and  Patriarchat;  also 
Hellwald,  Die  mensch.  Familie,  122-24,  who  gives  definitions  of  "marriage"  and 
"  famQy ; "  and  Westeemaeck,  "  Le  matriarcat,"  Annates,  115  ff.,  who  shows  that  in 
practice  writers  have  used  "  matriarchate  "  in  three  senses. 

2  Les  origines  du  mariage,  302-28. 

3  Lippert,  Geschichte  der  Familie,  17;  Ungee,  Die  Ehe,9.  See  also  Gumplo- 
wicz,  Grundriss  der  Sociologie,  Abschnitt  III,  who  holds  that  a  period  of  gynocracy 
preceded  the  androcratic  stage;  Baeazetti,  in  ZVR.,  IX,  304-7.  See  also  Gage, 
Woman,  Church,  and  Stale,  13  ff. 


Theory  op  the  Horde  and  Mother-Right     45 

tance  of  name  and  family  rights  through  the  mother  usually 
gives  woman  a  decided  precedence  in  the  sphere  of  social 
life  and  private  law.  This  is  the  opinion  of  Kautsky,  who 
declares  that  mother-right  involves  the  headship  of  woman 
in  the  family.'  Peschel/  Tylor,^  Letourneau/  and  Hellwald^ 
hold  a  similar  view;  and  with  them  Grosse,^  Kohler/  and 
Friedrichs/  though  more  reserved,  appear  in  the  main  to 
coincide.  Dargun  likewise  rejects  the  idea  of  woman's 
political  supremacy,  while  holding  that  mother-right  some- 
times grows  into  a  real  matriarchate  so  far  as  private  law 
is  concerned.^  The  weight  of  evidence,  however,  shows  that 
even  this  modified  view  exaggerates  the  advantages  gained 
by  woman  under  mother-right.  It  may  be  admitted  that 
here  and  there — as  for  instance  among  the  Sioux,  the  Wyan- 
dots,  and  some  other  American  peoples" — the  determina- 
tion of  the  child's  social  and  legal  rights  through  the  mother 
has  somewhat    ameliorated    the  condition  of  woman.     Yet 

1  Kautskt,  "  Die  Entstehung  der  Ehe  nnd  Familie,"  Kosnws,  XII,  343,  344. 

2  Peschel,  Races  of  Man,  233,  234. 

3  Tyloe,  Method  of  Investigating  Institutions,  252. 

* LetOUENEAU,  in  Annates  de  Vinstitut  international,  155:  "Le  mot  [matriar- 
cat]  doit  disparaltre,  parceque  la  chose  n'a  jamais  exist6." 

sHellwald,  Die  mensch.  Familie,  213  ff.  But  this  author  (112  ff.,  116)  shows 
that  among  primitive  men  the  sexes  were  not  fully  differentiated ;  so  that  women 
often  possessed  "  amazonian  "  characteristics. 

sGeosse,  Die  Formen  der  Familie,  48, 161  ff.,  176  ff.,  183.  According  to  Grosse, 
among  the  lowest  existing  races  patriarchalism  prevails.  Examples  of  women  exer- 
cising political  authority  in  the  clan  (Sippe)  are  exceedingly  rare,  although  such 
may  be  found  occasionally,  as  among  the  Huron  and  Iroquois,  and  some  other  peoples. 

^  KOHLEE,  "  Die  Ehe  mit  nnd  ohne  Mundium,"  ZVR.,  VI,  328,  329.  Cf.  Powell, 
"  Wyandot  Government,"  I,  Rep.  of  Bureau  of  Eth.,  59-69. 

8FEIEDEICH8,  " Ueber  den  Ursprung  des  Matriarchats,"  ZFi?.,  VIII,  381,382, 
though  he  shows  elsewhere  that  paternal  authority  may  coexist  with  mother-right: 
"  Familienstufen  und  Eheformen,"  ibid.,  X,  206.  Cf.  Mucke,  Horde  und  Familie, 
108  ff.,  114  ff.,  passim,  who  maintains  that  the  family,  androcratic  or  gynocratic, 
originates  in  slavery  through  rape  or  purchase.  In  the  gynocratic  family  the  woman 
is  owner  and  mistress  of  the  man,  as  the  man  is  lord  of  the  woman  in  the  andro- 
cratic family. 

9  Daegun,  Mutterrecht  und  Vaterrecht,  67-85. 

10  For  an  example  see  Powell,  op.  cit.,  and  his  "  Wyandotte  Society,"  A.  A.  A.S., 
XXIX,  675-88. 


46  Matrimonial  Institutions 


often,  as  Dargun'  has  so  well  shown,  the  same  custom  has 
not  enabled  her  to  escape  social  degradation  or  marital 
bondage.^  She  is  rather  the  medium  through  which  rights 
are  conveyed  and  relations  established.  "Thus,  for  instance, 
among  the  Australians,  with  whom  the  clan  of  the  children 
is,  as  a  rule,  determined  by  that  of  the  mother,  the  husband 
is,  to  quote  Mr.  Curr,  almost  an  autocrat  in  his  family,  and 
the  children  always  belong  to  his  tribe."  ^  Dr.  Starcke 
reaches  a  similar  conclusion.  Referring  to  the  "  important 
place"  taken  by  the  wife  among  various  African  peoples,  he 
declares  that  all  which  "has  been  said  only  shows  that 
women  in  some  instances  enjoy  privileges  which  are  always 
enjoyed  by  men."*  In  short,  if  among  many  peoples  at 
some  stage  of  progress  research  has  clearly  demonstrated 
the  existence  of  mother-right,  it  has  just  as  clearly  shown 
that  the  notion  of  a  gynocracy,  of  a  period  of  female 
supremacy,  is  without  historical  foundation. 

The  theory  of  original  communism  has  been  accepted  by 
many  writers,^    though    examples  of    absolute    promiscuity 

'  For  his  theory  see  the  Mutterrecht  und  Vaterrecht;  and  compare  chap,  i,  pp. 
20-23,  above. 

2  See  Post,  Ursprung  des  Rechts,  52-56 ;  Die  Geschlechtsgenossenschaft,  94,  denying 
the  existence  of  a  period  of  gynocracy;  also  Spencer,  Principles  of  Sociology,  I,  748; 
Ploss,  Das  Kind,  II,  393 ;  Wake,  Marriage  and  Kinship,  216-19;  Letouenbau,  V&vo- 
lution  du  mariage,  131. 

3  Westermarck,  Human  Marriage,  41 ;  Cuer,  The  Australian  Race,  I,  60,  62,  69. 
Dargdn,  Mutterrecht  und  Vaterrecht,  2  fif.,  insists  that  Mutterrecht  denotes  merely 
exclusive  kinship  through  the  mother  and  is  entirely  consistent  with  paternal 
authority.    Cf.  Mucke,  173  ff. 

*  Starcke,  op.  cit.,  65;  cf.  ibid.,  229.  Fear  of  the  blood-feud  through  the  wife's 
relatives,  as  among  the  Amaxosa,  may  sometimes  act  as  a  check  upon  the  power  or 
brutality  of  the  husband  :  Eehme,  "  Das  Recht  der  Amaxosa,"  ZVR.,  X,  39,  40. 

5 For  example,  by  Giraud-Teulon,  Les  origines  du  mariage,  70  ff.,  passim;  Lip- 
pert,  Kulturgeschichte  der  Menschheit,  II,  7  ;  BernhOet,  "  Zur  Gesch.  des  eur.  Fami- 
lienrechts,"  ZVR.,  VIII,  ICl  ff. ;  Engels,  Ursprung  der  Familie,  17;  Kulischer, 
"Die  geschlechtliche  Zuchtwahl,"  ZFE.,  VIII,  140;  "Intercommunale  Ehe,"  il)id., 
X,  193;  Morgan,  Systems  of  Consanguinity,  480,  487  ff . ;  Aiicient  Society,  418,  500-502, 
384  ff. ;  Bastian,  Rechtsverhdltnisse,  xviii,  lix;  McLennan,  Studies,  I,  92,  95,  passim; 
Lubbock,  Origin  of  Civilization,  86  ff.,  98  ff. ;  Post,  Anfange  des  Staats-  und  Rechts- 
lebcn,  19 ;  Geschlechtsgenossenschaft,  16  ff. ;  Grundlagen  des  Rechts.  182  ff . ;  Familien- 
recht,  54  ff. ;  Ursprung  des  Rechts,  46  ff . ;  Wilken,  Das  Matriarchat,  7 ;  Gdmplowicz, 
Outlines  of  Sociology,  110  ff. ;  and  especially  Kohler,  in  ZVR.,  IV,  266,  267 ;  V,  334  ff., 
and  elsewhere  throughout  his  numerous  papers. 


Theory  of  the  Horde  and  Mother-Right     47 

have  not  been  produced.'  Its  former  existence  is  inferred 
from  certain  customs  and  institutions  which  are  believed  to 
be  its  survivals.  Even  the  promiscuity  which  is  thus 
assumed  is  not  "perfectly  indiscriminate,"  but  restricted  to 
the  members  of  the  unorganized  horde  or  tribe  occupying 
a  particular  locality  or  roaming  about  together.  Hence, 
significantly,  it  has  sometimes  been  described  as  commu- 
nal or  group  "marriage."^  Accordingly  the  horde ^  or 
band  becomes  the  unit  or  starting-point  of  social  develop- 
ment. 

Many  evidences  of  the  former  universality  of  promiscuity 
are  brought  forward.  This  evidence — to  adopt  Wester- 
marck's    convenient    analysis — "flows    from    two    sources. 

iThus  Giraud-Tbulon  (op.  cit.,  70),  a  zealous  advocate  of  the  theory  of  promis- 
cuity, declares:  "Avant  d'accopter  une  semblable  hypothfese,  il  convieut  cependant 
de  reconnaltre  que  I'on  n'a  pas  encore  trouv6  de  peuplade  vivant  actuellement  en 
6tat  de  complete  promiscuity."  But,  he  adds,  the  facts  observed  among  living 
tribes  "soat  en  tel  uombre,  en  telle  concordance,  et  coufinent  de  si  prfes  h.  la  pro- 
miscuity absolue,  que  ce  n'est  pas  sortir  du  champ  des  hypotheses  scientifiquement 
permises  que  de  supposer  dans  I'enfance  de  I'humanitS  un  6tat  de  pur  communisme." 
On  the  lack  of  positive  proof  cf.  also  Kautsky,  "  Die  Entstehung  der  Ehe  und 
Familie,"  Kosmos,  XII,  198  ff. ;  Westeemaeck,  Human  Marriage,  41 ;  Morgan, 
Ancient  Society,  500  ff.;  McLennan,  Studies  in  Ancient  History,  I,  83  ff.,  93  ff.; 
Spencer,  Principles  of  Sociology,  1, 662, 664 ;  Hellwald,  Die  metisch.  Familie,  130, 131. 

2  "  Communal  marriage  "  is  the  name  introduced  by  Sir  John  Lubbock,  Origin 
of  Civilization,  86,  98,  103,  104-9,  whose  theory  is  criticised  by  McLennan,  Studies,  I, 
329ff.  "Gruppen-  oder  Hordenehen"  is  the  term  employed  by  Post,  Familienrecht, 
57,  58;  Grundlagen  des  Bechts,  200,  201 ;  Anfdnge,  10  ff.  For  the  so-called  Australian 
group-marriage  see  FiSON  and  Howitt,  Kamilaroi  and  Kurnai,  50  ff.,  99  ff.,  159  ff. ; 
the  criticism  of  Cure,  The  Australian  Race,  I,  106-42,  which  should  be  compared 
with  KOHLEE,  "  Das  Recht  der  Australaeger,"  ZVB.,  VII,  326  ff.,  329  ff.,  337  ff. ;  his  Zur 
Geschichte  der  Ehe,  64  ff . ;  CuNOW,  Australneger ;  Spencer  and  Gillen,  Native  Tribes 
of  Central  Australia;  and  Crawley,  Mystic  Rose,  475  ff.  In  general,  on  group- 
marriage  see  KuiiiscHER,  in  ZFE.,  VIII,  140;  X,  193;  BernhOft,  "Altindisches 
Familienorganisation,"  ibid.,  IX,  5  ff. ;  Scheoedee,  Das  Recht  in  der  geschlechtlichen 
Ordnung,  19  ff , 

3 On  the  horde  see  Beenh5ft,  "Zur  Gesch.  des  eur.  Familienrechts,"  ZVR., 
VIII,  167;  Westeemaeck,  Human  Marriage,  41,52;  Friedeichs,  "  Familienstufen 
und  Eheformen,"  ZVR.,  X,  194,  197,198;  idem,  ibid.,  VIII,  378,  379;  Kautsky,  "Die 
Entstehung  der  Ehe  und  Familie,"  Kosmos,  XII,  193  ff.  (the  Stamm) ;  Post,  Geschlechts- 
genossenschaft,  4ff. ;  Familienrecht,  57,  58;  Kohlee,  in  ZVR.,  VII,  381;  Mucke, 
Horde  und  Familie;  Geosse,  Die  Formen  der  Ehe,  59,62;  Frerichs,  Zur  Natur- 
geschichte  des  Menschen,  106,  107;  Hellwald,  Die  metisch.  Familie,  121  ff.,  153; 
GuMPLOWicz,  Outlines  of  Sociology,  110  ff. ;  and  the  literature  cited  below  on  the 
Australian  class-systems,  and  on  the  works  of  Morgan  and  Spencee. 


48  Matrimonial  Institutions 


First,  there  are,  in  the  books  of  ancient  writers  and  modern 
travelers,  notices  of  some  savage  nations  said  to  live  promis- 
cuously ;  secondly,  there  are  some  remarkable  customs  which 
are  assumed  to  be  social  survivals,  pointing  to  an  earlier  stage 
of  civilization  when  marriage  did  not  exist." '  The  mass  of 
facts  collected  to  illustrate  the  licentiousness  of  savage  and 
barbarous  tribes  cannot  here  be  dwelt  upon.^  It  must  suffice 
for  the  present  to  note  that,  according  to  recent  investiga- 
tion, every  instance  of  alleged  indiscriminate  sexual  relations 
appears  to  stop  far  short  of  absolute  promiscuity.^  So  also 
several  of  the  more  interesting  customs,  regarded  as  direct 
survivals  of  communism,  require  only  to  be  briefly  mentioned. 
The  principal  argument,  of  course,  as  will  presently  appear, 
is  grounded  upon  the  existence  of  polyandry,  and  especially 
upon  the  proofs  adduced  of  the  wide  prevalence  of  kinship 
reckoned  through  the  mother's  line.  For  it  is  generally 
assumed  that  this  system  can  arise  only  when  paternity  is 
uncertain.     Legalized  hetairism  or   prostitution,*  practiced 

1  Westeemaeck,  op.  cit,  52. 

2 For  this  class  of  evidence,  see  Gieaud-Teulon,  Les  origines  du  mariage,  1  ff. : 
Post,  Familienrecht,  57,  58;  Anfange,  17  ff. ;  Lubbock,  Origin  of  Civilization,  69  ff., 
104  ff.;  BeenhOft,  "Zur  Geschichte  des  eur.  Familienrechts,"  ZVR.,  \1II,  161  ff. ; 
McLennan,  Studies,  I,  83  ff. ;  Moegan,  Ancient  Society,  500  ff.,  passim ;  Lippeet, 
Geschichte  der  Familie,  168-80;  Ploss,  Das  Weib,  I,  331,  360  ff.,  370ft'.,  383 ff.; 
KuLiscHEE,  "Die  geschlechtliche  Zuchtwahl,"  ZFE.,  VIII,  140,  141;  Feiedeichs, 
"Ursprung  des  Matriarchats,"  ZVR.,\H1,  370  ff.;  Mucke,  Horde  und  Familie,  65, 
138  ff.,  who  deny  that  these  customs  are  evidences  of  promiscuity;  as  also  does 
Schmidt,  Jus primae  noctis,  36  ft'.;  Kohlee,  "Ueber  das  Negerrecht,  namentlich  in 
Kamerun,"  ZVR.,  XI,  419,  422;  "  Studien  uber  Frauengemeinschaft,"  ibid.,  V,  334  ff.; 
Zur  Urgeschichte  der  Ehe,\i,  64  ff.,  146;  and  elsewhere  in  his  various  monographs; 
Hellwald,  Die  mensch.  Familie,  187,  326-29;  Kovalevsky,  Mod.  Customs  and  Anc. 
Laws  of  Russia,  6ff. ;  Schneidee,  Die  NaturvOlker,  I,  267  ft'.;  II,  413  ff.,  who,  reject- 
ing the  doctrines  of  evolution  and  survival,  holds  to  the  biblical  legend  of  the  "fall 
of  man." 

3  The  result  of  the  recent  researches  of  Spencer,  Starcke,  Westermarck,  Letour- 
neau,  and  others  will  be  discussed  in  the  next  chapter. 

*  Eead  especially  the  section  of  BeenhOft,  "  Zur  Geschichte  des  eur.  Familien- 
rechts," 161-221,  on  "Askese  und  HetSrismus,"  who  is  criticised  by  Mucke,  Horde  U7id 
Familie,  122;  GuYOT,  Prostitution,  12  ff . ;  Mantegazza,  Geschlechtsverhdltnisse  des 
Meiischen.  366  ff. ;  and  the  detailed  and  learned  monograph  of  Rosbnbaum,  Geschichte 
der  Lustseuche  im  Alterthume  (Halle,  1893).  An  examination  of  the  whole  subject  is 
given  by  Westebmabce,  Human  Marriage,  chap.  iv. 


Theory  of  the  Horde  and  Mother-Right     49 

under  various  forms  and  restrictions  among  many  peoples, 
savage,  barbarous,  and  civilized,  is  thought  to  be  a  proof 
of  original  communism.'  The  same  is  true  of  "  proof - 
marriages,"^  existing  among  the  Wotjaken,  Burmese,  the 
Germans,  in  Loango,  and  elsewhere;  of  "temporary"  mar- 
riages,* as  among  the  Parthians  and  American  Indians;  and 
of  "wife-lending,"  examples  of  which  are  afiPorded  by  the 
Spartans,  Romans,  Hindus,  Arabs,  Eskimo,  Germans,  Wot- 

1  In  this  connection  are  adduced  the  cases  in  which  courtesans  have  been  held 
in  high  esteem,  sometimes  in  higher  regard  than  married  women,  as  in  Athens  and 
India :  Gieaud-Teulon,  Les  origines  du  mariage,  43-45 ;  Lubbock,  Origin  of  Civiliza- 
tion, 132,  133,  537,  538;  Post,  Geschlechtsgenoss.,  31;  Scheoedee,  Das  Recht  in  der 
geschlechtlichen  Ordnung,  244  ff. ;  BeenhOft,  "  Zur  Gesch.  des  eur.  Familienrechts," 
ZFiJ.,  VIII,  172-74;  Kohlee,  "Ueber  das  Negerrecht,"  t6id.,  XI,  419;  Westeemaeck, 
op.  cit.,  61  £F.,  80,  81,  who  denies  the  inference  of  promiscuity  from  this  custom  and 
mentions  many  low  tribes  among  whom  chastity  is  observed.  Cf.  Feiedeichs,  in 
ZVB,,  VIII,  374  ff. ;  Schneider,  Die  NaturvOlker,  II,  473, 474,  who  ascribes  the  custom 
to  religious  impulse  —  the  consecration  of  virgins  to  the  cult  of  Aphrodite. 

The  custom,  found  among  Egyptians,  Tibetans,  Wotjaken,  American  Indians, 
and  other  peoples,  permitting  girls  freely  to  prostitute  themselves  before  marriage 
is  similarly  put  in  evidence:  Heeodotus,  II,  121, 124, 125, 126;  IV,  176;  V, 6;  Post, 
Grundlagen,lSl;  Geschlechtsgenoss.,  29-31;  Familienrecht,  346;  Bdch,  Die  WotJ&ken, 
45 ff.;  Kohlee,  in  ZVR.,^,  335  (Wotjaken);  BeenhOft,  op.  cit,  165,  166;  Gieaud- 
Teulon,  op.  cif.,  52,  53;  Ungee,  Die  Ehe,  12,  13;  Hellwald,  Die  mensch.  Familie, 
220  ff.,  343;  Waitz,  Anthropologic,  II,  112,  113  (Africa) ;  Ratzel,  Hist,  of  Mankind, 
II,  128  (Brazil  and  ancient  Peru);  Peatz,  Hist,  de  la  Louisiane,  II,  386  (Natchas 
Indians) ;  Stevenson,  in  XI.  Rep.  of  Bureau  of  Eth.,  19,  20  (the  Sia) ;  Tuenee,  ibid. 
XI,  189  (the  Innuit). 

2  On  the  so-caUed  "Probeehen"  or  "Probenachte,"  see  Buch,  Die  Wotjaken,  50, 
51,  53,  57;  Kohlee,  in  ZVR.,  V,  346,  351,  338,  339;  Post,  Anfange,  21 ;  DUeingsfeld, 
Hochzeitsbuch,  9;  ScHiaDT,  Jus  primae  noctis,  40;  Weinhold,  Deutsche  Frauen, 
I,  261  ff. ;  Feiedbeeg,  Eheschliessung,  84 ;  and  especially  Fischee,  Ueber  die  Probe- 
nachte der  teutschen  Bauernmadchen,  who  gives  a  detailed  historical  investigation 
from  the  early  Middle  Ages  onward,  with  interesting  examples.  Cf.  Kovalevsky, 
Mod.  Customs  and  Anc.  Laws  of  Russia,  12,  13  (the  Kirchgang  or  Dorfgehen  of 
Switzerland,  Baden,  and  Wartemberg). 

Among  the  Todas,  after  a  marriage  is  arranged,  the  bride  has  a  proof-time  of  a 
night  and  a  day.  On  the  "expiry  of  this  brief  honeymoon,"  the  damsel  is  required 
to  make  up  her  mind  "either  to  accept  or  reject  her  suitor." — Maeshall,  A  Phrenolo- 
gist amongst  the  Todas,  212. 

3STEABO,  II,  515;  Lubbock,  op.  cit.,  131;  Gieaud-Teulon,  op.  cit.,  3;  Post, 
Geschlechtsgenoss.,  29,  43ff;  Anfange,  21;  especially  Hellwald's  chapter  entitled 
"Zeitehen  und  wilde  Ehen,"  Die  mensch.  Familie,  438  ff. ;  and  Kulischee,  "  Com- 
munale  Zeitehen,"  Archiv  fiir  Anthropologic,  XI,  228  ff. ;  Waitz,  Anthropologic,  III, 
105  (proof  and  temporary  marriages  among  American  Indians) ;  II,  114  (same  in 
Africa) ;  Klemm,  Kulturgeschichte,  II,  78  (N.  A.  Indians) ;  Tuenee,  in  XI.  Rep.  of 
Bureau  of  Eth.,  189  (Innuit) ;  McGee,  The  Seri  Indians,  in  XVII.  Rep.  of  Bureau  of 
Eth.,  Part  I,  280. 


50  Matrimonial  Institutions 

jaken,  and  many  other  peoples.^  In  this  connection,  like- 
wise, belong  those  "scandalous  nuptial  rites"  which  Bachofen, 
Lubbock,  and  Giraud-Teulon  regard  as  acts  of  "expiation" 
for  marriage.  According  to  this  theory,  marriage,  the  indi- 
Widual  possession  of  a  woman,  was  originally  regarded  as  a 
fviolation  of  communal  right,  for  which  some  compensation 
/or  expiation  must  be  rendered,''     The  customs  referred  to 

•  Plutarch,  Lycurgus,  c.  15  (Sparta);  Feiedeichs,  "Ursprung  des  Matriar- 
chats,"  ZFi?.,  VIII,  372,  373;  Post,  ^n/owge,  25;  Geschlechtsg.,  Z^S,;  Nadaillac, 
L'iiolution  du  manage,  17  ff. ;  Lubbock,  Origin  of  Civilization,  131,  132,  who  men- 
tions the  well-known  case  of  Cato's  lending  his  wife  Marcia  to  his  friend  Hortensius ; 
BuCH,  Die  Wotjaken,  4«;  Kohlee,  in  ZVR.,  Ill,  398,  note  (India),  399  (Germans) ;  V, 
336  (Wotjaken),  342  (Alaska),  353  (Creeks);  VII,  326  (Australia);  VIII,  84  (Birma); 
XI,  422  (Kamerun) ;  Jolly,  in  ZVB.,  IV,  331, 332  (Hindns) ;  Smith,  Kinship  and  Mar- 
riage, 116;  Waitz,  Anthropologie,  II,  114  (Africa);  Nelson,  "The  Eskimo  about 
Bering  Strait,"  in  XVIII.  Rep.  of  Bureau  of  Eth.,  Part  I,  292;  McGee,  in  XV.  Rep.  of 
Bureau  of  Eth.,  178  (Sioux);  Westeematjck,  op.  cit.,  74  n.  1,  mentions,  with  the 
sources  of  information,  many  tribes  among  whom  wife-lending  prevails. 

"Exchange  of  wives"  is  common  among  the  Eskimo.  "For  instance,  one  man 
of  our  acquaintance  planned  to  go  to  the  rivers  deer  hunting  in  the  summer  of  1882, 
and  borrowed  his  cousin's  wife  for  the  expedition,  as  she  was  a  good  shot  and  a  good 
hand  at  deer  hunting,  while  his  own  wife  went  with  his  cousin  on  the  trading  expe- 
dition to  the  eastward.  On  their  return  the  wives  went  back  to  their  respective 
husbands."  Sometimes  in  such  cases  the  women  are  better  pleased  with  their  new 
mates  and  remain  with  them.  "According  to  Gildee  (Schivatka's  Search,  197)  it  is 
a  usual  thing  among  friends  in  that  region  to  exchange  wives  for  a  week  or  two 
almost  every  two  months."  Egede  (Greenland,  139)  says  such  temporary  exchanges 
take  place  at  festivals.  So  also  at  Eepulse  Bay,  at  certain  times  there  is  said  to  be 
a  "general  exchange  of  wives  throughout  the  village,  each  woman  passing  from  man 
to  man  till  she  has  been  through  the  hands  of  all,  and  finally  returned  to  her  hus- 
band."—Muedoch,  "Point  Barrow  Expedition,"  IX.  Rep.  of  Bureau  of  Eth.,  413.  Cf. 
Tuenee,  "Ethnology  of  Ungava  Dist.,"  ibid.,  189.  The  loaning  of  wife  or  daughter 
to  a  guest,  or  the  prostitution  of  the  wife  for  hire,  appears  among  some  South 
American  tribes:  Maetius,  Ethnographie,  1, 118;  idem,  Rechtszustande,  65. 

2  Lubbock,  Origin  of  Civilization,  130-32, 536  ff . ;  Gieaud-Teulon,  Les  origines  du 
mariage,  5  ff.,  who  says:  "Le  mariage  (en  prenant  ce  mot  dans  son  sense  6troit) 
apparalt  chez  les  races  inferieures  comme  une  infraction  aux  droits  de  la  com- 
munaute,  et  partant,  comme  la  violation  d'une  loi  naturelle:  de  1&,  &  le  consid6rer 
comme  la  violation  d'une  loi  religieuse,  il  n'y  avait  qu'un  pas."  See  the  criticism 
by  McLennan,  Studies,  I,  335  ff.,  who  rejects  the  theory  of  expiation  for  violation  of 
communal  right ;  because  usually  the  woman  does  not  belong  to  the  husband's  tribe, 
and  because  often  the  privileges  are  exercised  by  friends  of  both  bridegroom  and 
bride.  Cf.  FisON  AND  Howitt,  Kamilaroi  and  Kurnai,  149-56;  Wake,  Marriage 
and  Kinship,  17,  34,  65,  245  ff. ;  Lippeet,  Geschichte  der  Familie,  169;  Kohlee,  in 
ZVR.,Vll,  327  (Australia);  Mucke,  Horde  und  Familie,  138-40,  who  rejects  the 
theory ;  and  Kovalevsky,  Mod.  Customs  and  Atic.  Laivs  of  Russia,  10,  11,  who  refers 
to  the  promiscuous  intercourse  practiced  at  various  festivals,  resembling  the  assem- 
blies on  the  Roumanian  Gainaberg  which  Kohler  has  discussed  in  ZVR.,  VI,  398  ff. 
These  may  be  compared  with  the  license  practiced  at  certain  gatherings  among  the 
Arunta  and  several  other  Australian  tribes:  Spencee  and  Gillen,  Native  Tribes  of 
Central  Australia,  96  ff. 


Theory  op  the  Horde  and  Mother-Right     51 

fall  for  the  most  part  in  two  general  classes.  The  first 
group  comprises  the  lascivious  religious  rites,  the  so-called 
sacred  or  temple  prostitution,  found  in  connection  with 
the  worship  of  various  deities  of  love  and  procreation,  such 
as  the  Babylonian  Mylitta,  the  Hellenic  Aphrodite,  the 
Italian  Venus  and  the  Carthaginian  Moloch.'  In  the  sec- 
ond class  fall  the  revolting  nuptial  privileges,  accorded  in 
many  parts  of  the  world  to  priest,  chieftain,  or  king,  or 
to  the  friends  of  the  bridegroom  and  sometimes  to  those 
of  the  bride.  To  these  privileges  in  general  the  name  of 
jus  primae  noctis  has  been  given.^     A  curious  example  of 

1  "Thus  Herodotus  states,  in  Babylonia,  every  woman  was  obliged  once  in  her 
life  to  give  herself  up,  in  the  temple  of  Mylitta,  to  strangers,  for  the  satisfaction  of 
the  goddess;  and  in  some  parts  of  Cyprus,  he  tells  us,  the  same  custom  prevailed. 
In  Armenia,  according  to  Strabo,  there  was  a  very  similar  law.  The  daughters  of 
good  families  were  consecrated  to  Anaitis,  a  phallic  divinity  like  Mylitta,  giving 
themselves,  as  it  appears,  to  the  worship  of  the  goddess  indiscriminately." — 
Westeemaeck,  Human  Marriage,  72;  Heeodotus,  I,  c.  199;  Steabo,  XI,  532.  As  to 
Babylon  Herodotus  may  have  been  mistaken ;  cf.  chap,  iv,  below.  See  further  illus- 
trations in  BeenhOft,  op.  cit.,  169 ff.;  Gieadd-Teulon,  op.  cit,  IS.;  Ploss,  Dos 
Weib,  I,  383  £f . ;  Lippeet,  Geschichte  der  Familie,  171;  Feiedeichs,  in  ZVR.,  VIII, 
373,  who  enumerates  the  peoples  where  the  custom  has  existed;  idem,  ibid.,  X,  215, 
216;  Hellwald,  Die  mensch.  Familie,  356  £f. ;  and  Howaed,  Sex  Worship,  103-16,  201, 
passim,  who  holds  that  sacred  prostitution,  and  many  of  the  other  sexual  practices 
usually  assigned  as  survivals  of  promiscuity,  are  evidences  of  phallicism. 

2  The  monograph  of  De.  Kael  Schmidt,  Jiis  primae  noctis,  is  the  most  elabo- 
rate work  on  the  subject.  The  author  denies  (41  ff.,  365  ff.,  379)  that  the  custom 
existed  in  feudal  Europe  or  elsewhere  as  a  right;  and  he  holds  that  the  practices 
so  called  are  not  evidences  of  promiscuity.  His  views  are  sharply  criticised  by  Hell- 
WALD,  Die  mensch.  Familie,  349  n.  4  ;  and  especially  by  Kohlee,  in  ZVR.,  IV,  279-87. 
Schmidt  has  a  supplementary  discussion  in  ZFE.,  XVI,  44  ff. ;  and  is  reviewed 
unfavorably  by  Kohlee,  ZVR.,  V,  397-406.  See  also  Schmidt's  Slavische  Geschichts- 
quellen  zur  Streitf rage  ilber  das  Jus  Primae  Noctis  ;  Kohlee,  Urgeschichte  der  Ehe, 
140;  idem,  in  ZVR.,  VII,  350,  351;  VIII,  85;  Schneidee,  Die  NatwvGlker,  II,  471-73; 
Giradd-Teulon,  op.  cit,  32-41;  Weinhold,  Die  deutschen  Frauen,  I,  300,  301; 
LiETOVR'SEAv ,  L'ivolutioii  du  mariage,  56-62;  Sdggenheim,  Geschichte  der  Aufhebung 
der  Leibeigenschaft,  104,  who  believes  the  "right  of  the  lord"  existed  in  France  far 
down  into  the  Middle  Ages;  Bachofen,  Mutterrecht,  12,  13,  17,  18,  passim;  Post, 
Anfange,  17, 18;  idem,  Geschlechfsgenoss.,  37;  Kulischee,  "Die  communale  Zeitehe," 
in  Archiv  fur  Anthropologic,  XI,  228  ff.,  who  refers  to  the  recent  existence  of  the 
alleged  custom  in  Russia;  Feiedeichs,  in  ZVR.,  X,  214,  215;  Starcke,  op.  cit., 
124-26.  There  is  a  learned  discussion  in  the  quaint  De  uxore  theotisca,  cap.  i,  of 
Geupen;  the  literature  cited  in  Bibliographical  Note  II  should  be  consulted;  and 
Schmidt  has  appended  a  very  full  bibliography  to  his  book.  The  term  jus  primae 
noctis  is  especially  applied  to  the  alleged  "right  of  the  lord"  in  feudal  times; 
but  the  existence  of  even  this  custom  as  a  legal  privilege  is  still  an  unsettled 
question. 


V 


52  Matrimonial  Institutions 

this  practice  among  the  American  aborigines  is  communi- 
cated by  Castaneda.' 

The  argument  for  original  promiscuity  based  on  the 
various  practices  just  mentioned  is  not  conclusive.  Most,  if 
not  all,  of  them  are  perhaps  capable  of  other  and  simpler 
explanations.  The  wife-lending,  as  suggested  by  Wester- 
marck,  may  be  "due  merely  to  savage  ideas  of  hospitality;"* 
while  the  custom  of  sacred  prostitution  evidently  belongs 
"to  phallic- worship,  and  occurred,  as  Mr.  McLennan  justly 
remarks,  among  peoples  who  had  advanced  far  beyond  the 
primitive  state.  The  farther  back  we  go,  the  less  we  find  of 
such  customs  in  India;  'the  germ  only  of  phallic-worship 
shows  itself  in  the  Vedas,  and  the  gross  luxuriance  of  licen- 
tiousness, of  which  the  cases  referred  to  are  examples,  is  of 
later  growth.' "  ^  So  likewise  the  jus  primae  noctis,  instead  of 
being  an  expiation  for  an  encroachment  on  communal  right, 
may  be  more  naturally  explained  either  as  an  abuse  of  power,* 
in  some  cases  as  an  evidence  of  hospitality,'"  or  in  others  as  a 
"common  war-right,  exercised  whenever,  under  any  circum- 

1  The  custom  is  for  the  men  "to  buy  the  women  whom  they  marry  of  their 
fathers  and  relatives  at  a  high  price,  and  then  to  take  them  to  a  chief,  who  is  con- 
sidered to  be  a  priest,  to  deflower  them  and  see  if  she  is  a  virgin ;  and  if  she  is  not, 
they  have  to  return  the  whole  price,  and  he  can  keep  her  for  his  wife  or  not,  or  let 
her  be  consecrated,  as  he  chooses."  In  the  same  connection,  Castafieda  says,  "among 
them  are  men  dressed  like  women  who  marry  other  men  and  serve  as  their  wives;" 
and  he  describes  also  a  curious  kind  of  legal  or  consecrated  prostitution  existing 
among  the  same  people:  see  the  translation  of  Castafie^ia's  account  in  Winship's 
"Coronado  Expedition,  1540-2,"  XIV.  Rep.  of  Bureau  of  Eth.,  513,  514.    Cf.  Fawcett, 

W^"On  Basivis:   Women,  Who,  through  Dedication  to  a  Deity,  Assume  Masculine 
Privileges,"  Jour.  Anth.  Soc.  (Bombay),  II  (1891),  322-54. 

2  Westeemaeck,  Human  Marriage,  73,  74;  Wake,  Marriage  and  Kinship,  81,  82. 
The  custom  may  possibly  be  accounted  for  by  the  slow  growth  of  the  sentiment  upon 
which  "  conjugal  attachment  depends : "  McLennan,  Studies,  I,  341.  For  an  alleged 
"survival"  see  Schmidt,  Hochzeiten  in  Thiiringen,  31.  For  the  strictly  regulated 
form  of  wife-lending  among  certain  Australian  tribes  see  the  reference  to  the  work 
of  Spencer  and  Gillen  below. 

3WESTEEMAECK,  op.  cit,  72;  McLennan,  studies,  1, 341,  342.  This  is  also  the  view 
of  Cliffoed  Howaed  in  his  Sex  Worship,  chaps,  v,  ix,  x. 

^Westeemaeck,  op.  cit.,  78;  Schmidt,  Jus  primae  noctis,  41. 

sWesteemaeck,  op.  cit.,  73. 


Theory  op  the  Horde  and  Mother-Right     53 

stances,  capture  of  a  woman  is  made  by  a  war-party."*  The 
toleration  of  the  custom,  like  that  of  wife-lending,  may  some- 
times be  due  to  the  "juridical"  nature  of  fatherhood  as 
conceived  by  primitive  men.^ 

On  the  other  hand,  the  theory  that  these  customs  are 
evidences  of  original  sexual  communism  has  gained  support 
from  the  recent  researches  of  Spencer  and  Gillen  in  their 
very  able  and  detailed  book  on  the  Native  Tribes  of  Central 
Australia.  Among  these  aborigines,  the  authors  declare, 
"so  far  as  marital  relations  ....  are  concerned,  we  find 
that  whilst  there  is  individual  marriage,  there  are,  in  actual 
practice,  occasions  on  which  the  relations  are  of  a  much 
wider  nature.  We  have,  indeed,  in  this  respect  three  very 
distinct  series  of  relationships,"  First  we  find  the  present 
"normal  condition  of  individual  marriage  with  the  occasional 
existence  of  marital  relations  between  the  individual  wife  and 
other  men  of  the  same  group  as  that  to  which  her  husband 
belongs,  and  the  occasional  existence  also  of  still  wider  mar- 
ital relations;"  secondly  "we  have  evidence  of  the  existence 
at  a  prior  time  of  actual  group  marriage ; "  and  in  the  third 
place  "we  have  evidence  of  the  existence  at  a  still  earlier 
time  of  still  wider  marital  relations."* 

'McLennan,  op.  cit.,  I,  337;  Westeemakck,  op.  cit.,  76, 

2The  well-known  theory  of  Staecke,  op.  cit.,  121-27.  It  is  not  essential,  accord- 
ing to  this  view,  in  early  stages  of  development,  that  a  child  should  be  actually 
begotten  by  the  father.  It  is  enough  that  it  should  be  borne  by  his  legal  wife  and  be 
accepted  by  him.  Hence  the  jus  primae  noctis,  exercised  by  a  priest,  king,  or  other 
distinguished  person,  is  sometimes  regarded  as  an  honor:  ibid.,  125,126;  Westbe- 
MAECK,  op.  cit,  79. 

3  The  first  series  of  relationships  is  seen  in  the  Arunta  tribe,  where  "  no  man  will 
lend  his  wife  to  anyone  who  does  not  belong  to  the  particular  group  with  which  it  is 
lawful  for  her  to  have  marital  relations  —  she  is,  in  fact,  only  lent  to  a  man  whom  she 
calls  Unwana,  just  as  she  calls  her  own  husband,  and  though  this  may  undoubtedly 
be  spoken  of  as  an  act  of  hospitality,  it  may  with  equal  justice  be  regarded  as  evi- 
dence of  the  very  clear  recognition  of  group  relationship,  and  as  evidence  also  in 
favor  of  the  former  existence  of  group  marriage."  A  native,  it  is  true,  will  some- 
times lend  his  wife  "  as  an  act  of  hospitality  to  a  white  man ;  but  this  has  nothing  to 
do  with  the  lending  of  wives  which  has  just  been  dealt  with."  It  "  does  not  imply 
the  infringement  of  any  custom."  The  second  relationship  in  the  series  named  is  of 
a  public  nature,  and  it  is  strictly  regulated  by  custom.    It  consists  in  the  defloration 


54  Matrimonial  Institutions 


But  tliese  usages  are  capable  of  a  very  diflPerent  explana- 
tion. That  they  imply  a  primitive  state  of  promiscuity  is 
emphatically  denied  by  Crawley.  Like  sacred  prostitution, 
the  customs  of  avoidance,  the  couvade,  and  marriage  rites 
in  general,  according  to  his  theory,  they  take  their  rise  in 
the  religious  or  superstitious  ideas  upon  which  sexual  taboo 
rests.' 

Adherents  of  the  communistic  theory  are  not  entirely  at 
one  as  to  the  phases  in  the  development  of  marriage  and  the 
family.  Very  generally  the  family,  regarded  from  the  stand- 
point of  authority  and  kinship,  is  said  to  pass  from  the  unreg- 
ulated horde  through  the  maternal  and  the  paternal  to  the 
parental  or  two-sided  stage.^  Thus  Dargun  declares  that 
there  is  a  tendency  for  the  uterine  system  of  kinship  to  give 
place  to  the  paternal,  but  never  the  reverse.*  Kohler  takes 
the  same  position.*  Lippert  regards  the  history  of  social 
culture  as  beginning  with  the  natural  relation  of  mother  and 

of  a  girl  just  before  her  marriage  by  certain  men  who  have  access  to  her  in  a  definite 
order.  These  men  belong  to  forbidden  groups ;  that  is,  groups  into  which  the  woman 
may  not  marry.  "The  ceremonies  in  question  are  of  the  nature  of  those  which  Sir 
John  Lubbock  has  described  as  indicative  of  expiation  for  marriage ;  "  and  they  may 
be  regarded  as  "rudimentary  customs"  pointing  back  to  a  stage  of  wider  marital 
rights  than  those  which  now  exist  in  these  tribes.  The  third  relationship  is  the 
license  allowed  on  "occasions  when  a  large  number  of  men  and  women  are  gathered 
together  to  perform  certain  corrobborees,"  the  more  important  gatherings  lasting 
perhaps  "  ten  days  or  a  fortnight."  Every  day  "  two  or  three  women  are  told  oS  to 
attend  at  the  corrobboree  ground,  and,  with  the  exception  of  men  who  stand  in  the 
relation  to  them  of  actual  father,  brother,  or  son,  they  are,  for  the  time  being,  com- 
mon property  to  all  the  men  present."  The  explanations  of  similar  usages  advanced 
by  McLennan  and  Westermarck,  such  as  phallicism,  are  deemed  inapplicable  to  these 
cases :  Spencee  and  Gillen,  Native  Tribes  of  Central  Australia^  92-111.  Compare 
especially  Kohlee,  Zur  Urgeschichte  der  Ehe,  6iS., passim,  who  finds  in  the  totem 
groups  and  classificatory  systems  of  relationship,  existing  in  Australia,  America,  and 
elsewhere,  evidence  of  former  group-marriage. 

1  Mystic  Rose,  236-66,  294-317,  347  ff.,  468-85,  passim.  Cf.  Lang,  Sociat  Origins, 
87-111,  passim. 

2  According  to  Feiedeichs,  "  Familienstufen  and  Eheformen,"  ZVR.^'S.,  190  ff., 
the  forms  of  the  family  are  the  following:  (1)  "die  lose  Familie;  "  (2)  "  die  matriar- 
chale,  uterine  Familie; "  (3)  "die  patriarchale,  agnatische  Familie; "  (4)  "die  mod- 
erne,  zweiseitige  Familie." 

3DAEGUN,  Mutterrecht  und  Rauhehe,  12,  13.    For  exceptions,  however,  see  his 
Mutterrecht  und  Vaterrecht,  29  ff.,  35,  41,  46. 
♦Kohler,  in  ZVR.,  Ill,  393 ;  IV,  266  ff. 


Theory  of  the  Horde  and  Mother-Right     55 

child,  producing  in  course  of  evolution,  long  before  "mar- 
riage" arose,  the  "primitive  family"  whose  principle  is 
mother-right,  and  which,  in  turn,  under  various  influences, 
generally  yields  to  the  "old  family"  (Alffamilie)  in  its 
origin  based,  not  on  relationship,  but  on  patriarchal  power 
and  possession.*  Bernhoft  denies  the  invariable  sequence  of 
mother-right  and  father-right  f  and  Kautsky  maintains  that 
the  two  systems  are  parallel,  not  successive,  developments 
from  the  hetairism  of  the  primitive  horde.' 

Marriage  also,  like  the  family,  is  said  to  pass  through 
several  distinct  phases  of  development.  Thus,  with  respect 
to  the  number  of  persons  joining  in  a  household,  Friedrichs 
distinguishes  four  "forms"  of  marriage  which,  with  equal 
propriety,  may  be  called  forms  of  the  family.  These  are 
group-marriage,  polyandry,  polygyny,  and  monogamy,  the 
first  three  forms  having  several  varieties.*  But,  as  will 
hereafter  appear,^  it  would  be  rash  to  infer  that  these  forms 
necessarily  arise  in  the  order  named.  Again,  with  regard 
to  the  way  in  which  it  originates,  marriage  presents  a  num- 
ber of  successive  stages.  According  to  Kohler,**  these  are 
marriage  by  capture,  marriage  by  purchase,  religious  mar- 
riage, and  civil  marriage.  That  wife-capture  generally 
gives  place  to  wife-purchase,  and  this  in  turn  to  marriage 
by  gift,  and  then  to  the  modern  contract  between  the  par- 
ents, or  later  between  the  parties  themselves,  is  especially 

1  LiPPEET,  Geschichte  der  Familie,  4  ff.,  218  ff. ;  idem,  Kulturgeschichte,  1, 76  ff.,  90. 

2BEENH0FT,  "Zur  GescMchte  des  eur.  Familienrechts,"  ZVR.,  VIII,  401,  402. 

3 Kautsky,  "Die  Entstehung  der  Ehe  und  Familie,"  Cosmos,  XII,  33&-48,  espe- 
cially 347 ;  cf.  Mdcke,  Horde  und  Familie,  172  ff. 

*Feiedkichs,  "  Familienstufen  und  Eheformen,"  ZVR.,  X,  256-58. 

5  See  below,  chaps,  iii,  iv. 

6"  Wie  die  Ehe  aus  der  Ueberwaltigung  der  Fran  durch  den  Mann  hervorging, 
und  wie  sie  sich  von  da  aus  zum  Frauenkaufe  gestaltete;  wie  sie  zur  religiOsen 
Heilanstalt  wurde  und  wie  sie  von  da  aus  zum  gelauterten  Rechtsinstitute  umbil- 
dete,  indem  die  religiose  Feier  nicht  mehr  obligat  blieb,  ....  lehrt  uns  das  indische 
Eecht  klarer,  als  jedes  andere." — "  Indisches  Ehe-  und  Familienrecht,"  ZVR.,  Ill, 
342,343. 


56  Matrimonial  Institutions 


insisted  upon.  Hildebrand/  however,  reverses  this  order. 
A  measure  of  progress  he  finds  in  what  he  regards  as  the 
three  great  industrial  stages  of  human  culture :  those  of  the 
chase,  pastoral  life,  and  agriculture.  In  the  first  stage,  not 
communism,  but  a  tendency  toward  monogamy  prevails. 
There  is  little  notion  of  private  property ;  hence  covetous- 
ness  is  not  a  motive  of  social  action.  Marriages  are  freely 
formed  through  presents  given  to  the  parents,  or  even  with- 
out them  by  simple  agreement  of  the  parties.  Later,  with 
the  rise  of  private  property,  marriage  by  purchase  and  mar- 
riage by  capture  come  into  existence;  though  capture  is 
always  exceptional  and  of  comparatively  little  importance  in 
the  history  of  marriage. 

Similar  to  the  view  of  Hildebrand,  in  respect  to  the  initial 
stage,  is  the  theory  of  Kautsky.^  The  starting-point  is  the 
horde.  In  this  absolute  equality  of  the  sexes  prevails;  and 
the  only  divisions  are  the  different  generations.  Neither 
the  maternal  nor  the  paternal  line  is  recognized,  for  the 
children  belong  to  the  group.  Not  promiscuity,  but 
" hetairism," '^  or  rather  "hetairistic  monogamy,"  exists. 
Incessant  feuds,  however,  lead  to  wife-capture;  and  wife- 
capture  tends  directly  to  communism,  for  the  captured 
woman  belongs  as  a  slave  to  the  band.  But  the  rights  of 
the  band  may  pass  to  the  individual.  The  free  native 
woman  is  "wooed;"  the  war-captive  is  "fought-for;"  and  so 
she  becomes  the  slave-wife  of  the  strongest,  who  may  win 
other  wives  in  the  same  way.  Marriage  by  capture  thus 
conquers  the  original  monogamy,  in  whose  place  polygyny 
appears,  either  at  once,  or  after  a  transition-period  of  com- 

1  Hildebrand,  Ueber  das  Problem  einer  algemeinen  Entwicklungsgeschichte, 
14  ff.,  17  fE. ;  idem,  Recht  und  Sitte  auf  den  versch.  Kulturstufen,  9  ff. 

2KAtJTSKY,  "Entstehung  der  Ehe  und  Familie,"  Kosmos,  XII,  190-207,  256-72, 
329-48. 

sKautsky's  use  of  "hetairism"  for  "defective"  monogamy  is  apt  to  become 
misleading. 


> 
Theory  of  the  Horde  and  Mother-Right     57 


munity  in  women.  Moreover,  in  this  process  may  be  dis- 
cerned the  genesis  of  modern  individual  marriage  under  the 
sanction  of  the  law.  But  the  consequences  of  wife-capture 
are  not  yet  exhausted.  The  presence  in  the  horde  of  women 
taken  from  several  neighboring  bands  leads  at  once  to  the 
formation  of  clans  and  to  the  matriarchate ;  for  the  connec- 
tion of  children  with  the  clan  is  naturally  determined  by 
the  mother.  The  development  of  private  property  produces 
still  further  results.  The  individual  may  buy  his  wife. 
She  becomes  his  chattel;  and  the  offspring  also  belong  to 
him.  Thus  marriage  by  purchase  gains  the  victory  over 
wife-capture;  and  the  patriarchate  triumphs  over  mother- 
right.  This  is  the  order  of  development  in  the  more 
war-like  hordes.  But  wife-capture  does  not  always  precede 
wife-purchase  as  a  general  phase.  In  the  more  peaceful  and 
industrious  groups  wife-capture  does  not  appear  at  all. 
Here  hetairistic  monogamy  runs  its  natural  course.  Partly 
under  the  external  influence  of  tribes  where  mother-right 
existed  as  the  result  of  wife-capture,  but  mainly  under  the 
powerful  influence  of  private  property,  the  matriarchate  arose. 
In  the  earlier  stage  kinship  with  the  father  was  disregarded 
or  unknown.  Naturally,  therefore,  under  the  new  condition, 
name  and  also  property  were  transmitted  to  the  children 
through  the  mother,  with  whom  their  physical  connection 
was  always  manifest.  So  it  appears  that  the  conception  of 
private  property  is  the  basis  of  "hetairistic  mother-right" 
as  it  is  of  father-right;  and  hetairistic  mother-right,  as 
distinguished  from  the  mother-right  which  owes  its  origin 
to  wife-capture,  implies  the  precedence  of  woman  in  the 
family.^  "Gynocracy  and  patriarchalism  are  therefore 
parallel  branches  of  the  same  stem,"  the  original  hetairism 
of  the  horde:  the  one  cannot  be  a  further  development  of 
the  other.     Gynocracy,  and  with  it  polyandry,  which  is  its 

1  Katjtsky,  339. 


58  Matrimonial  Institutions 

result,'  is  the  highest  stage  in  the  evolution  of  hetairistic 
mother-right;  just  as  polygyny  and  the  patriarchal  family 
are  the  highest  stage  in  the  evolution  of  father-right  or  the 
agnatic  system  of  kinship.^ 

To  the  theory  of  Kautsky  that  of  Dargun,  already  ex- 
plained, bears  some  resemblance  in  important  details.  But 
Dargun  rejects  Kautsky's  idea  of  original  monogamy ;  and 
he  does  not  regard  wife-purchase  as  the  necessary  source  of 
the  patriarchate,  though  the  rise  of  the  latter  was  greatly 
favored  by  it;  while  mother-right  is  especially  due  to  the 
uncertainty  of  fatherhood.^ 

Hellwald  —  who  in  the  general  development  of  his  sub- 
ject and  in  many  essential  particulars  agrees  closely  with 
Lippert* — seeks  the  elements  of  human  sexual  relations  in 
those  of  the  lower  animals.  Absolute  promiscuity  has  never 
existed  among  men.  The  hetairism  which  prevailed  was 
restricted  to  the  immediate  band  or  horde  of  kindred,  which 
was  probably  never  large.  Thus  in  the  horde  there  was 
"unregulated  polygyny."  To  the  earliest  sexual  relations^ 
of  men  neither  "marriage"  nor  "family"  may  properly 
be  applied;  and  for  them  no  suitable  name  is  forthcoming. 
In  the  horde  the  first  social  institution  evolved  was  the 
"mother-group"  or  rudimentary  primitive  family  {JJrf ami- 
lie).  "Mother  and  child,"  as  Lippert  suggests,  "these  were 
the  simplest  elements  of  the  oldest  organization."     For  the 

1  According  to  Kautsky,  just  as  polygyny  arises  in  a  Herrschaftsverhaltniss  —  the 
lordship  of  the  man  over  the  captured  or  purchased  woman — so  polyandry  originates 
in  an  analogous  relation  of  the  woman  to  the  man.  Under  gynocracy  the  woman 
chooses  her  husband,  hence  polyandry ;  344-46. 

2  Kautsky,  347. 

3DAEGUN,  Mutterrecht  und  Vaterrecht,  60,  61, 127,  43-52. 

*For  Lippeet's  development  of  the  family  see  his  Geschichte  der  Familie,  and 
especially  his  excellent  Kultur geschichte,  I,  71-90;  II,  1-165,  505-54. 

5  Hellwald,  Die  mensch.  Familie,  121,  122,  126.  "  Was  Platz  griff,  war  wohl 
ongeregelte  Polygamic,  welche  aber  ziemlich  naturgemass  Polyandrie  nach  sich 
zieht,  und  aus  dieser  Vermischung  jenen  ehelosen  Geschlechtsverkehr  schuf,  fur 
welchen  noch  die  richtige  Benennung  fehlt."— I6td.,  129. 


Theory  of  the  Horde  and  Mother-Right     59 

"relation  of  mother  and  child  alone  is  given  by  nature.'" 
In  the  form  of  the  mother-group  the  family,  however  imper- 
fectly constituted,  precedes  the  state  in  the  order  of  growth ; 
although  it  is  not  until  society,  the  state,  has  gained  per- 
manent form  that  from  it  the  historical  "family"  is  devel- 
oped.^ Indeed,  the  mother-group  is  "lacking  in  everything" 
which  distinguishes  the  family  according  to  our  modern 
conceptions.^  The  history  of  the  "primitive  family,"  so  far 
as  mother-right  is  concerned,  shows  two  stages  of  evolution. 
The  first  stage  is  that  of  the  mother-group  strictly  so  called, 
through  which,  as  Bachofen  and  Dargun  declare,  every  race 
passes  and  in  which  all  relationship  is  traced  through  the 
mother's  blood.*  Absolute  unity  or  identity  of  blood  is 
the  basis  of  the  earliest  human  conception  of  relationship. 
Generations  or  stages  of  seniority  alone  (Alter sstuf en), 
not  degrees  of  kinship,  are  recognized.  Members  of  the 
group  are  of  equal  blood,  "consanguine."^  Relationship 
with  the  father  is  as  yet  unknown ;  and  there  is  in  the  outset 
no  conception  of  property.  Gradually,  however,  in  the 
endogamous  mother-group  a  horror  of  incest,  of  inbreeding, 
arises,  thus  leading  to  exogamy,  which  is  often  facilitated 
by  the  stealing  of  women  from  surrounding  groups.  The 
obtaining  of  foreign  women  next  produces  the  clan  system. 
Private  property  in  land  and  movables  arises,  especially 
among  those  peoples  which  have  attained  to  settled  life  and 
a  knowledge  of  agriculture.  In  this  way  the  "primitive 
family"  enters  upon  its  second  stage — that  of  the  matri- 
archate.     Here  we  find  for  the  first  time  forms  of  marriage 

1  Ibid.,  146, 150 ;  Lippeet,  Kulturgeschichte,  1, 76 ;  idem,  Geschichte  der  Familie,  20. 
2HELLWALD,  op.  cit.,  150;  Feeeichs,  Zur  Natur geschichte  des  Menschen,  103, 104; 
cf.  Lippeet,  op.  cit.,  I,  76. 

3  Hellwald,  op.  cit.,  151. 

*Ibid.,  151;  Dargun,  Mutterrecht  und  Raubehe,  3;  Bachofen,  Mutterrecht,  as 
above  quoted. 

5  Hellwald,  op.  cit.,  158  ff.,  accepting  Moegan's  main  conclusions  in  his  Sys- 
tems of  Consanguinity ;  and  opposing  Schneidbe,  Die  NaturvOlker,  II,  474-77. 


60  Matrimonial  Institutions 

and  the  family  properly  so  called,  although  rudimentary  as 
compared  with  the  modern  institutions.  The  mother  ceases 
to  be  merely  the  center  of  the  common  life ;  she  is  now  the 
social  axis  around  which  everything  revolves.  Mother-right, 
implying  kinship  as  well  as  succession  to  name  and  prop- 
erty exclusively  in  the  maternal  line,  becomes  fully  estab- 
lished. The  matriarchate,  unlike  the  simple  mother-group, 
is  not  a  universal  phase  through  which  all  mankind  has  run. 
In  some  cases  the  agnatic  system  or  father-right  may  have 
followed  immediately  upon  the  earlier  stage  of  mother-right. 
Incident  to  the  matriarchate  are  the  polygynous  and  poly- 
androus  forms  of  the  family.  With  these  the  institution  of 
property  grew  apace;  and  so  we  reach  the  paternal  system, 
whose  triumph  is  powerfully  aided  by  wife-capture.  In 
this  stage,  whatever  be  the  form  of  social  union — whether  it 
be  called  gens,  six^pe,  or  joint-family — it  rests  upon  the 
authority  of  the  father  or  patriarchal  lord.  Following  Lip- 
pert,^  the  author  prefers  for  this  patriarchal  group  the  name 
"old  family"  {Alffamilie)  \  and  he  finds  its  most  famous 
examples  in  Hellas  and  Rome.  Here  monogamy  gained  the 
victory ;  and  so,  under  the  influence  mainly  of  Stoicism  and 
Christianity,  the  foundations  of  modern  marriage  and  the 
individual  family  were  laid.^ 

The  influence  of  economic  forces  on  the  evolution  of 
matrimonial  and  family  institutions  is  especially  emphasized 
by  Grosse.  Restricting  his  examination  to  the  conditions 
which  lie  within  actual  "  historical  or  ethnological  experi- 
ence," he  seeks  to  demonstrate  that  the  "various  forms  of 
the   family  correspond    to    the  various    forms  of  economy 

1  LippEET,  Geschichte  der  Familie,  218,  219,  who  distinguishes  between  the  "Alt- 
nnd  Gesamtfamilie  "  and  the  modern  "  Sonderfamilie." 

2  Of  course,  only  a  bare  outline  of  the  author's  able  treatise  is  here  given.  See 
especially  Die  niensch.  Familie,  176  ff.  ("  Exogamie  und  Clanbildung  "),  197  ff.  ("  Ent- 
wicklungsbedingungen  und  Wesen  des  Matriarchats"),  227  ff.  ("  Die  Bundnissformen 
im  Matriarchat"),  274  ff.  ("  Der  Frauenraub  und  seine  Folgen"),  347  ff.  ("Ausbildung 
des  Patriarchats"),  529  ff.  ("  Die  Altfamilie"). 


Theory  of  the  Horde  and  Mother-Right     61 

(Wirthschaft);''''  that  "in  its  essential  features  the  character 
of  each  particular  form  of  the  family  may  be  explained  by 
the  form  of  economy  in  which  it  is  rooted."  For  the  sake 
of  clearer  analysis  the  peoples  known  to  history  or  ethnology 
are  arranged,  not  in  three,  but  in  five  groups  according  to 
the  leading  types  of  industrial  life.  These  are  the  lower 
and  upper  hunters,  the  pastoral  peoples,  and  the  lower  and 
upper  cultivators  of  the  soil.'  But,  like  Kohler,  Lippert, 
and  Hellwald,^  the  author  rejects  the  popular  theory  adhered 
to  by  Hildebrand,  that  the  chase,  herding,  and  agriculture 
are  three  successive  stages  of  progress  through  which  all  the 
races  of  mankind  have  necessarily  passed.  For,  as  a  matter 
of  fact,  some  pastoral  peoples,  and  even  some  hunters,  like 
the  Eskimo,  are  more  advanced  in  culture  than  various 
peoples  who  are  chiefly  dependent  upon  agriculture;  and 
some  tillers  of  the  soil,  as  Hildebrand  concedes,  may  never 
have  passed  through  the  pastoral  stage.^  On  the  other 
hand,  Grosse  distinguishes  two  forms  of  the  family:  the 
individual  family  [Sonderfamilie),  or  the  community  of 
parents  and  children  living  in  a  lasting  and  exclusive  mar- 
riage relation,  and  the  great-family  (Grossfamilie),  which 
comprises,  not  merely  parents  and  children,  but  all  descend- 
ants with  their  families,  so  far  as  they  are  not  separated 
from  it  by  marriage  or  otherwise.  Examples  of  the  "great- 
family"  are  afforded  by  the  Romans  and  the  Chinese;  while 
the  "individual  family"  is  practically  the  only  form  known 
wherever  western  European  culture  prevails.  In  each  form 
of  the  family  either  the  maternal  or  the  paternal  succession 
{Mutterfolge  or  Vaterfolge)  may  exist ;  but  succession  must 

1 "  Niedere  und  HOhere  JSger,  Viehzdchter,  Niedere  und  HOhere  Ackerbauer." — 
Gbosse,  Die  Formen  der  Familie,  25,  26. 

2  LiPPEET,  op.  cit.,  30  ff. ;  Kohlee,  Zur  Urgeschichte  der  Ehe,  4,  5,  where  Hilde- 
brand is  criticised;  Hellwald,  op.  cit.,  197  ff.,  who  declares  that  in  the  history  of 
civilization  it  is  "  undoubtedly  more  correct  to  regard,  not  pastoral  life  and  agricul- 
ture, but  nomadic  life  and  settled  life  as  the  marks  of  two  diverse  culture-phases." 

3GE08SE,  (yp,  cit.,  29  ff. 


62  Matrimonial  Institutions 

not  be  confused  with  the  matriarchate  or  with  the  patriar- 
chate, each  involving  the  idea  of  authority ;  although  paternal 
succession  usually  implies  paternal  power,  while  succession 
in  the  female  line  does  not  necessarily  carry  with  it  the 
supremacy  of  the  mother. 

Among  the  peoples  classed  as  "lower  hunters,"  even  the 
most  backward,  exists  the  individual  family;  and  in  the 
majority  of  cases  it  is  founded  on  monogamic  marriage,  for 
promiscuity  nowhere  appears.  The  authority  of  the  husband 
is  patriarchal.  "  He  procures  his  wife  by  exchange  or  service ; 
and  in  consequence  he  is  her  owner  and  lord."  The  "great- 
family"  and  the  gens  [sipjye)  are  also  found  among  these 
peoples;  but  they  are  relatively  little  developed.  Gentes 
which  have  become  unions  for  protection  and  control  of  ter- 
ritory are  iather-gentes;  while  those  in  which  the  kinship  is 
traced  through  the  mother  are  not  unions  for  the  purposes  of 
the  common  life,  but  for  maintenance  of  the  common  name.' 
The  case  is  practically  the  same  for  the  "upper  hunters." 
Wife-purchase,  however,  is  more  pronounced.  The  individ- 
ual monogamic  family  still  predominates.  Kinship  through 
the  mother  is  not  so  much  a  "motive  for  union  as  it  is 
for  separation  of  those  related  by  blood." ^  Here  as  among 
the  lower  hunters  it  is  the  paternal  gens  which  forms  an 
actual  union  for  the  common  life;  and  there  is  "not  the  least 
ground  for  assuming"  that  a  patriarchal  gentile  constitution 
has  replaced  an  earlier  matriarchal  form.  Among  peoples 
leading  a  pastoral  life,  even  more  than  with  those  devoted  to 
the  chase,  the  chief  economic  production  lies  in  the  hands 
of  the  man.  Accordingly  he  has  the  place  of  power  and 
honor.  Through  him  descent  and  kinship  are  usually  traced. 
Nowhere  is  the  paternal  system  so  one-sided  and  so  strin- 
gently carried  out  as  among  pastoral  tribes.     Woman  is 

1  "Im  Uebrigen  aber  bildet  die  Muttersippe  auf  dieser  Culturstufe  noch  keine 
Lebens-  sondern  nur  eine  Namensgemeinschaft."— Gbosse,  op,  cit.,  64. 
ilbid.,8i. 


Theory  op  the  Horde  and  Mother-Right     63 

oppressed  and  degraded.  She  is  bought  or  stolen  by  her 
lord.  Polygyny,  with  all  its  attendant  evils,  flourishes.  The 
individual  family  has  a  thoroughly  patriarchal  stamp ;  but  it 
is  still  the  most  conspicuous  social  fact,  surpassing  in  prac- 
tical significance  for  the  needs  of  the  pastoral  life  the  great- 
family,  and  far  more  the  gens.  On  the  contrary,  among  the 
lower  cultivators  woman  holds  an  economic  position  at  least 
equal  in  social  importance  to  that  of  man.  As  a  rule,  there- 
fore, she  is  no  longer  his  slave,  but  his  companion,  sometimes 
even  his  superior.  She  gains  a  corresponding  share  in  the 
control  of  the  children.  The  great-family  is  in  like  manner 
affected  by  the  new  economic  conditions.  Communal  agri- 
culture gives  a  mighty  impulse  to  the  growth  of  the  gentile 
constitution ;  and  now  among  many  peoples,  under  influence 
of  the  new  and  higher  position  of  woman,  the  maternal  gens, 
perhaps  existing  side  by  side  with  the  paternal  gens,  is 
developed  into  a  firm  social,  economic,  and  political  union. 
In  the  life  of  the  lower  cultivators,  if  the  gens  thus  becomes 
the  mightiest  social  organization,  the  fact  is  due  essentially 
to  its  economic  function.  With  the  change  from  communal 
to  individual  agriculture  the  gentile  constitution  is  dissolved ; 
and  so  among  the  higher  cultivators  the  individual  mono- 
gamic  family  has  more  than  regained  its  former  sway.  "Thus 
it  appears,"  the  author  summarizes,  "that  under  every  form 
of  culture  that  form  of  family  organization  prevails  which  is 
best  suited  to  economic  needs  and  conditions;"  although,  he 
wisely  warns  us,  a  perfect  explanation  of  the  various  types 
of  the  human  family  can  never  be  given  until  every  part  and 
function  of  culture  which  has  had  an  influence  upon  the 
functions  or  the  organisms  of  the  family  has  been  separately 
examined  for  each  case.' 

The  views  of  Dargun,  Hildebrand,  and  Grosse  may  be 
compared  with  the  remarkable,  but  scarcely  well-grounded, 

iJ6Jd.,244,245. 


64  Matrimonial  Institutions 

speculation  of  Mucke.'  According  to  his  ingenious  theory, 
men  originally  lived  in  the  horde,  which,  so  far  from  being 
a  fortuitous  unorganized  band,  in  which  "animal  promis- 
cuity" prevailed,  was  so  strictly  ordered  as  to  be  worthy  the 
name  of  the  "society  of  the  primeval  age," ^  In  the  horde  all 
are  free  and  equal.  There  is  no  subordination  of  the  wife, 
monogamy  prevails;  for,  since  every  male  or  female  has  his 
predestined  mate,  there  is  no  room  for  communism.  The 
author's  treatise  rests  upon  the  fundamental  assumption  that 
primitive  relationships  are  merely  "space-relationships."' 
They  do  not  arise  in  notions  of  descent.  They  are  deter- 
mined by  the  fixed  spaces  occupied  by  each  sex,  generation, 
and  individual  in  the  Hordenlager  or  camping- place.*  Every 
male  finds  his  predestined  wife  in  the  corresponding  room  or 
division  on  the  opposite  side  of  the  sleeping-space;  each 
brother  thus  marrying  the  sister  nearest  to  himself  in  the 
order  of  birth.  This  ideal  life  of  the  horde  is  brought  to  an 
end  through  the  rise  of  the  family.  The  family  (ironifamel, 
a  "servant")  is  the  very  opposite  of  the  horde  of  free  and 
equal  members,  originating  as  it  does  in  subjection  and 
servitude.  Almost  simultaneously  the  family  develops  two 
forms,  the  androcratic  and  the  gynocratic.     Each  originates 

1  Mdckb,  Horde  und  Familie  in  ihrer  urgeschichtlichen  Entwickelung,  Eine  neue 
Theorie  auf  statistischer  Grundlage  (Stuttgart,  1895).  Mucke  is  harshly  reviewed  by 
KOHLEE,  Urgeschichte  der  Ehe,  17-27. 

2"Genossenschaft  der  Urzeit."  He  derives  horde  from  orta,  orda  =  "local  com- 
munity," "Ortsgemeinschaft,"  hence  "order":  Mucke,  viii,  40,41,  43  ff., passim, 

3  "Raumverwandtschaften,"  Mucke,  1  ff.,  20-43,  passim. 

<The  details  of  the  author's  argument  cannot  here  be  given.  First  {erster 
Abschnitt)  he  appeals  to  the  mental  processes  of  the  child.  The  spaces,  and  conse- 
quently the  relationship,  arise  in  the  child's  sense-perception,  the  impression 
obtained  by  the  infant  soul  of  the  relative  distance  or  remoteness  of  persons  belong- 
ing to  the  different  ages  and  generations.  The  very  inadequate  evidence  adduced 
for  the  former  universality  of  such  Lager  arrangement  {sechster  Abschnitt)  consists 
(1)  of  the  alleged  customs  of  modern  Asiatic  hordes;  and  (2)  the  remains  of  ship- 
shaped  graves  and  dwelling-places  discovered  in  various  parts  of  the  world.  With 
wonderful  ingenuity  the  author  is  able  to  explain  by  his  theory  nearly  every  problem 
connected  with  marriage  and  the  family.  Aside  from  the  constructive  part  of  his 
work,  his  criticism  of  other  writers,  though  often  unjust  and  intolerant,  is  some- 
times acute  and  instructive. 


Theory  of  the  Horde  and  Mother-Right     65 

in  capture'  which,  under  the  influence  of  the  conception  of 
private  property,  yields  to  purchase.  In  the  androcratic 
family,  the  woman  becomes  a  slave-wife ;  in  the  gynocratic, 
the  man  becomes  a  slave-husband.^  Polyandry  is  the  natural 
product  of  the  gynocratic,  as  is  polygyny  of  the  androcratic 
family.  Originally  each  of  these  forms  of  the  family  is  part 
"maternal"  and  part  "paternal,"  in  the  ordinary  sense.  But 
gradually,  under  the  influence  of  adoption,  aided  by  pur- 
chase, the  horde  is  broken  up  and  modern  forms  of  the 
family  arise.  ^ 

II.     morgan's  constructive  theory 

The_dia£tiine  of  the  primitive  horde  as  the  starting-point 
of  aaeiaL  evolution  has  a  special  interest  in  connection  with 
the  researches  of  Lewis  H.  Morgan  and  J.  F.  McLennan. 
Though  their  principal  works  appeared  subsequently  to  that 
of  Bachofen,*  each  has  reached  his  conclusions  independ- 
ently; and  each,  rejecting  the  patriarchal  family  as  the 
primordial  unit,  has  set  forth  what  may  be  calledar-^^«en- 
structive^^-4heQrx.ofuniform  social  progress.     In  the  hands 

1  The  brothers  capture  men  for  their  sisters  by  way  of  reprisal  and  retaliation 
for  stealing  the  latter :  Mucke,  Horde  und  Familie,  125, 126,  111,  113  ff. 

2  But  at  first  the  man  and  the  woman  are  merely  slaves  — there  is  no  sexual  or 
marriage  relation  whatever:  ibid.,  117. 

3  Ibid.,  178-82.  In  the  fourth  and  fifth  Abschnitte  (155-247)  the  author  dis- 
cusses the  dissolution  of  the  horde  through  the  influence  of  the  two  forms  of  the 
family.  The  argument  is  involved  and  almost  entirely  a  priori.  It  is  nearly  impos- 
sible to  discover  his  conclusion  as  to  whether  a  purely  patriarchal  or  matriarchal 
family  is  differentiated  in  the  process. 

*McLennan's  Studi&i  in  Ancient  History  appeared  in  1876,  being  mainly  a 
reprint  of  his  Primitive  Marriage,  published  January,  1865,  four  years  later  than 
Bachofen's  book;  but  "it  was  in  the  spring  of  1866,"  he  says,  "that  I  first  heard  of 
Das  Mutterrecht.^'' — Studies,  I,  319. 

Morgan's  League  of  the  Iroquois  was  published  in  1851,  and  in  this  he  describes 
some  of  the  essential  facts  connected  with  his  theory.  In  1857,  he  re-examined  the 
subject  and  enlarged  his  views  {Proceedings  of  the  Am.  Association  for  the  Advance- 
ment of  Science,  Part  II).  But  it  was  not  until  1871  that  his  great  work  on  Systems 
of  Co-nsanguinity  appeared,  though  accepted  for  publication,  January,  1868.  This 
was  followed  by  the  Ancient  Society,  1877,  in  which  his  theory  is  fully  elaborated. 
TheffoMses  and  House-Life  of  the  American  Aborigines,  1881,  was  originally  intended 
as  Part  V  of  the  Ancient  Society. 


66  Matrimonial  Institutions 


of  each  marriagiB  and  the  family  are  made  to  pass  through 
an  ascending  series  of  phases  for  all  mankind.  Unquestion- 
ably valuable  as  are  their  contributions  to  the  material  of 
sociological  science,  seldom  have  there  been  seen  more 
striking  examples  of  hasty  generalization  than  appear  in 
the  theoretical  parts  of  their  work. 

This  is  particularly  true  of  the  theories  of  Morgan;* 
although  in  his  Systems  of  Consanguinity  he  has  with  pro- 
disrious  labor  erected  a  monument  of  scientific  research 
whose  vast  importance  for  the  early  histoJ^y -of  human  social 
relations  is  by  no  means  yet  definitively  settled ;  and  whose 
Ancient  Society,  aside  from  its  speculative  features,  has  the 
distinction  of  first  clearly  identifying  the  gentile  organiza- 
tion of  the  Greeks  and  Romans  with  that  of  the  red  race  of 
the  western  continents.  Starting  with  the_<argamzatiDn  of 
society  "on  the  basis  of  sex,"  as  illustrated  by  the  so-called 
class  or  group-marriages  of  the  Australian  Kamilaroi,  he 
proceeds  to  discuss  at  length  the  gentile  systems  of  the 
American  Indians  and  the  classic  nations.^  Originally  rela- 
tionship is  traced  in  the  female  line,  and  intermarriage  is 
prohibited  within  the  gens.  The  gens  is  older  than  the 
monogamic  family.  It  cannot  have  the  family  as  its  con- 
stituent unit,  because  it  is  composed,  not  of  entire  families, 
but  of  parts  of  families.^ 

The  earliest  phase  of  sexual  relations  among  primitive 
men    is    promiscuity.     Following   this    are    five    successive 

1  Referring  to  Lubbock's  favorable  view  of  Morgan's  contributions  to  ethno- 
logical science,  De.  Staeckb  declares:  "With  all  respect  for  Morgan's  diligence  as 
a  collector  of  facts,  I  am  more  disposed  to  agree  with  McLennan  that  his  work  is 
altogether  unscientific,  and  that  his  hypotheses  are  a  wild  dream,  if  not  the  delirium 
of  iever.''''— Primitive  Family,  207,  208.  Cf.  McLennan,  Studies,  1,  269;  Lubbock, 
Origin  of  Civilization,  162;  and  Geosse,  Die  Formen  der  Familie,  3  ff.  This  criticism 
is  far  too  severe;  see  Kohler,  Zur  Urgeschichte der  Ehe,  1  ff. ;  CuNOW,  Australneger, 
chaps,  v-vii,  11  ff. ;  Hellwald,  Die  mensch.  Familie,  158  ff. 

"^Ancient  Society,  49-379;  Houses  and  House-Life,  1  ff. 

3 Ancient  Society,  22,1,  433  ff.,  469.  It  is  easy  to  see  that  this  argument  is  falla- 
cious, even  when  the  rule  of  exogamy  prevails.  Cf.  the  criticism  of  Stabcee,  op. 
cit.,  275-77;  Botsfoed,  Athenian  Constitution,  4-7. 


Theory  of  the  Horde  and  Mother-Right     67 

stages  or  forms  of  marriage  and  the  family,  shading  into 
each  other,  and  each  running  a  "long  course  in  the  tribes 
of  mankind,  with  a  period  of  infancy,  of  maturity,  and  of 
decadence."  '  Of  these  forms  the  first,  second,  and  fifth  are 
"radical,"  that  is,  each  developing  a  distinct  system  of  con- 
sanguinity. These  systems  of  consanguinity  "resolve  them- 
selves into  two  ultimate  forms,  fundamentally  distinct." 
One  is  the  classificatory  and  the  other  the  descriptive. 
"Under  the  first,  consanguinei  are  never  described,  but  are 
classified  into  categories,  irrespective  of  their  nearness  or 
remoteness  in  degree  to  Ego;  and  the  same  term  of  relation- 
ship is  applied  to  all  the  persons  in  the  same  category." 
Under  the  second,  which  came  in  with  monogamy  and  pre- 
vails among  the. Aryan,  Semitic,  and  Uralian  peoples,  "con- 
sanguinei are  described  either  by  the  primary  terms  of 
relationship  or  a  combination  of  these  terms,  thus  making 
the  relationship  of  each  person  specific."  ^  The  classificatory 
systems  of  consanguinity,  it  should  be  carefully  noted,  are 
more  tenacious  than  the  forms  of  marriage,  their  nomen- 
clatures often  surviving  long  after  the  actual  relationships 
they  denote  have  ceased  to  exist. 

The  first  form  of  the  family  in  Morgan's  series  is  the 
consanguine,^  based  on  the  intermarriage  of  brothers  and 
sisters,  own  and  collateral,  in  a  group.  Though  now  extinct, 
this  form  is  thought  once  to  have  been  universal,  rude  sur- 
vivals being  found  even  in  the  present  century  among  the 
Hawaiians.  But  the  evidence  of  its  former  existence  upon 
which    Mr.   Morgan    relies    as    conclusive   is    the    Malayan 

^Ancient  Society,  389,  and  on  the  whole  subject,  382-508.  In  his  earlier  work. 
Systems  of  Consanguinity,  480  ff .,  Me.  Morgan  gives  fifteen  normal  stages  or  insti- 
tutions in  the  evolution  of  marriage  and  the  family.  See  also  the  summary  in 
McLennan,  Studies,  I,  251,  252;  and  Lubbock's  elaborate  discussion  of  Morgan, 
Origin  of  Civilization,  162  ff. 

2 Ancient  Society,  394 ;  Systems  of  Consanguinity,  10-15 ;  Lubbock,  op.  cit.,  165. 

^Ancient  Society,  383  ff.,  401-23;  Systems  of  Consanguinity ,  480  ff.,  488  ff.,  where  the 
term  "communal  family"  is  used. 


68  Matrimonial  Institutions 


\y\ 


system  of  consanguinity,  which  he  assumes  could  only  have 
been  produced  by  it.  This  system  is  found  among  the 
Maoris,  the  Hawaiians,  and  other  Polynesians.  Anciently 
it  may  have  prevailed  generally  in  Asia ;  and  it  lies  at  the 
basis  of  the  Chinese  relationships.  The  Malayan  system  is 
classificatory.  "The  only  blood-relationships  are  the  pri- 
mary," being  comprised  in  five  categories.  These  are  parent, 
child,  grandparent,  grandchild,  brother  and  sister.  Thus 
consanguine  marriage  "found  mankind  at  the  bottom  of  the 
scale"  of  social  progress. 

/  In  course  of  time,  however,  its  evils  were  perceived 
knd  the  second  form  of  the  family  arose.  This  is  the 
IPunaluan,'  resting  on  the  intermarriage  of  several  sisters 
^n  a  group  with  each  other's  husbands;  or  on  that  of  sev- 
eral brothers  in  a  group  with  each  other's  wives;  mar- 
riage between  brothers  and  sisters  not  being  permitted. 
"The  Punaluan  family  has  existed  in  Europe,  Asia,  and 
America^  within  the  historical  period,  and  in  Polynesia 
within  the  present  century,"  the  most  interesting  example 
being  afforded  by  the  Hawaiians.  It  is  an  outgrowth  of  the 
consanguine  family  "through  the  gradual  exclusion  of  own 
brothers  and  sisters  from  the  marriage  relation."  ^  "With 
it  arose  the  organization  into  gentes,  whose  "fundamental 
rules"  in  the  archaic  form  are  exogamy  and  relationship 
in  the  female  line.  The  Punaluan  family  co-operating 
with  the  gentile  organization,*  produced  the  Turanian  or 
Ganowdnian  system  of  consanguinity,  which  is  also  classi- 

i  Systems  of  Consanguinity,  131  £F.,  489,  490;  Ancient  Society,  424-52.  The 
Hawaiian  word  PunalUa  means  "dear  friend,"  "intimate  companion":  ibid.,  427. 

2  In  forty  North  American  tribes  the  former  existence  of  the  Punaluan  family  is 
thought  to  be  proved  by  the  Turanian  system  of  consanguinity  and  by  the  right  of 
the  husband  of  the  eldest  sister  to  the  younger  sisters  also :  A7icient  Society,  432, 436. 

sibid.,  424. 

*  Since  the  rule  of  exogamy  as  respecting  the  gens  would  permit  the  intermar- 
riage of  brothers  and  sisters.  For  convenience  McLennan's  term  "  exogamy  "  is  here 
used  to  indicate  prohibition  of  marriage  within  the  gens. 


Theory  op  the  Horde  and  Mother-Right     69 

ficatory.'  This  is  described  by  Morgan  as  "simply  stupen- 
dous," recognizing  "all  the  relationships  known  under  the 
Aryan  system,  besides  an  additional  number  unnoticed  by 
the  latter." ' 

But  forces  were  now  operating  within  the  Punaluan 
family  which  were  destined  to  transform  it,  "From  the 
necessities  of  the  social  state,"  there  was  more  or  less  pair- 
ing from  the  first,  "each  man  having  a  principal  wife 
among  a  number  of  wives,  and  each  woman  a  principal 
husband  among  a  number  of  husbands."  Moreover,  the 
fuller  development  of  the  gentile  organism,  with  its  rule  of 
exogamy,  tended  to  foster  a  sentiment  hostile  to  the  inter- 
marriage of  near  kindred  and,  in  other  ways,  to  produce  a 
scarcity  of  women  available  for  marriage  within  the  Puna- 
luan groups,  thus  leading  to  wife-capture  and  wife-purchase. 
Under  these  influences  arose  the  Syndiasmian,  or  third 
general  type  of  the  family,  based  upon  the  marriage  of 
single  pairs,  often  temporary  and  without  exclusive  cohabi- 
tation. It  is  found  among  the  Senaca-Iroquois  and  many 
other  American  tribes,  among  the  Tamils  of  South  India, 
and  some  other  races  of  Asia.^  This  family  did  not  produce 
a  distinct  system  of  consanguinity,  the  peoples  having  it 
still  retaining  the  Turanian  system.*  The  next,  or  Patri- 
archal, family,  like  the  Syndiasmian,  is  "intermediate,"  not 
being  "sufficiently  influential  upon  human  affairs  to  create 
a  new,  or  modify  essentially  the  then  existing  system  of 
consanguinity."  ^  It  is  found  particularly  among  the  Semites 
and  Romans,  and  is  characterized  by  the  "organization  of  a 

^Systems  of  Consanguinity,  131-382.  But,  curiously  enough,  among  the  peoples  with 
the  Punaluan  family  the  Malayan  system  of  consanguinity  survived :  Ancient  Society, 
426, 427,  passim.  Ganowdnians  are  the  American  Indians,  the  word  meaning  "bow-and- 
arrow  people  " :  Systems  of  Consanguinity,  131.  Cf.  McLennan,  Studies,  I,  253,  n.  1. 

2  Ancient  Society,  387,  435  ff.  In  all  more  than  two  hundred  relationships  of  the 
same  person  are  recognized :  ibid.,  436. 

3/6id.,  384  ff.,  453-65.  Called  the  "  barbarian  "  family  in  Systems  of  Consanguinity, 
490,  491. 

*  Ancient  Society,  461.  5  Ibid.,  384,  465,  466;  Systems  of  Consanguinity,  480,  491. 


70  Matrimonial  Institutions 


number  of  persons,  bond  and  free,  into  a  family  under 
paternal  power,  for  the  purpose  of  holding  lands,  and  for  the 
care  of  flocks  and  herds."  The  Syndiasmian,  and  in  a  less 
degree  the  Patriarchal,  constitute  the  transitional  stage  in 
the  development  of  the  Monogamic  family.  Its  rise  was 
especially  fostered  by  the  influence  of  property  and  the 
increase  of  the  paternal  power,  leading  to  the  change  from 
the  female  to  the  male  line  of  descent.  It  produced  the 
system  of  consanguinity  prevailing  among  the  Uralian, 
Semitic,  and  Aryan  peoples.' 

Such,  sketched  in  hasty  outline,  is  the  symmetrical  struc- 
ture which  the  author  of  the  Ancient  Society  has  erected. 
But  it  has  not  been  able  wholly  to  withstand  the  shock  of 
adverse  criticism.  The  argument  rests  on  too  narrow  a 
basis  of  investigation,  and  it  is  sometimes  contradictory  in 
its  details.  Its  jeal  foundation  is  the  assumption^th^t  the 
nomenclatures  of  the  classificatory  systems  of  relationship 
must  necessarily  denote  actual  relationships.  The  truth  of 
this  assumption,  however,  is  not  self-evident.  Other  explana- 
tions of  their  meaning,  some  of  them  simpler  and  far  more 
probable,  have  been  offered.  In  the  first  place,  it  is  evident 
that  Morgan  was  misled  by  Fison's  account  of  the  Kamilaroi 
class-marriages.^  Only  in  Australia  was  he  able  to  find  in 
existence,  as  he  believed,  a  social  organization  upon  the  basis 
of  sex.  Yet  it  is  by  no  means  established  that  communal  or 
even  group-marriage  has  ever  prevailed  among  the  Australian 
aborigines.  The  criticism  of  Mr.  Curr  has  raised  doubt  as 
to  the  trustworthiness  of  Fison's  theory,  although  it  may 
not  have  entirely   shattered  it.'     According    to    Curr,   the 

1  Ancient  Society,  468-97 ;  Systems  of  Consanguinity,  492,  493,  3-127. 

2  Published  by  Morgan  in  Proceedings  of  the  Am.  Academy  of  Arts  and  Science, 
for  1872 ;  and  subsequently  presented  in  full  by  FisON  in  Kamilaroi  and  Kurnai,  50  £f., 
99  ff.,  159  £F.,  passim;  Morgan,  Ancient  Society,  49-61.  Compare  McLennan's 
account  of  Australian  kinship  in  Studies,  II,  278-310,  especially  304  ff. 

3  Cure,  The  Australian  Race,  1, 106-42.  Cf.  also  Keane,  Man :  Past  and  Present, 
154, 155 ;  and  Crawley,  Mystic  Rose,  348,  476  S. 


Theory  op  the  Hoede  and  Mother-Right     71 

class-system  is  an  ingenious  arrangement  to  prevent  close 
intermarriages.  Even  first  cousins  may  not  marry.'  The 
Australian  is  very  jealous  of  his  wife,  who  may  be  betrothed 
to  him  in  childhood.  Wife-lending  occurs,  but  it  is  not 
sanctioned  by  custom.  The  use  of  a  single  word  for  differ- 
ent relationships,  as  for  father  and  father's  brother,  is  not  an 
evidence  of  former  group-marriage,  but  of  "poverty  of 
language."^  Nevertheless  the  Australian  nomenclature  is 
richer  in  terms  of  relationship  than  has  been  assumed  by 
Mr.  Fison,  "There  is  hardly  an  Australian  vocabulary  in 
print"  in  which  distinct  translation  of  terms  for  "uncle, 
aunt,  nephew,  niece,  sister-in-law,  and  son-in-law"  do  not 
occur.^ 

Mucke,  as  we  have  already  seen,  explains  the  classificatory 
system  as  being  a  survival  of  the  primitive  "space-relation- 
ships" of  the  primitive  horde/  By  Kautsky  also  its  origin 
is  traced  to  the  horde  in  which  "hetairistic  monogamy" 
prevailed,  and  in  which  blood-relationship  with  the  parents 
was  not  regarded.  The  classes,  therefore,  have  nothing  to 
do  with  descent,  but  each  embraces  all  the  individuals  of  a 
single  generation  under  a  common  name.^ 

On  the  other  hand,  McLennan,  in  his  well-known  con- 
troversy with  Morgan,**  insists  that  the  system  of  nomencla- 
ture is  merely  a  "system  of  mutual  salutations,"  urging  the 
fact  that  most  of  the  peoples  having  it  possess  also  "some 
well-defined  system  of  blood-ties."^  Yet  he  believes  that  the 
Malayan  nomenclature,  which  lies  at  the  basis  of  Morgan's 
classificatory  system,  "had  its  origin  in  some  early  marriage- 

1  Cube,  op.  cit,  I,  111,  112.  2 Ibid.,  116. 

^Ibid.,  140.    Compare  the  criticism  of  Westeemaeck,  Human  Marriage,  56,  57. 
i  Mucke,  Horde  und  Familie,  31  £f.,  passim. 

5KAUTSKY,  "Entstehung  der  Ehe  und  Familie,"  Kosmos,  XII,  194-98,  256. 
6  See  Studies,  I,  249-315;  II,  304  ff.;  and  the  reply  of  Moegan,  Ancient  Society, 
509  ff. 

TStttdies,  I,  270,  271,  273. 


72  Matrimonial  Institutions 


law."'  Starcke  criticises  this  inconsistency/  and  comes  to 
the  conclusion,  after  examination  of  the  whole  question,  that 
the  "nomenclature  was  in  every  respect  the  faithful  reflec- 
tion of  the  juridical  relations  which  arose  between  the  near- 
est kinsfolk  of  each  tribe.  Individuals  who  were,  according 
to  the  legal  point  of  view,  on  the  same  level  with  the  speaker, 
received  the  same  designation."^  In  substantial  harmony 
with  this  opinion  are  the  results  of  Westermarck's  researches.* 
According  to  his  view  the  classificatory  nomenclatures  are 
merely  terms  of  address,  used  to  denote  the  sex,  relative  age, 
or  the  "external,  or  social  relationship  in  which  the  speaker 
stands  to  the  person  whom  he  addresses."^ 

These  criticisms  have  not  gone  unchallenged.  More  recent 
and  more  detailed  examination  of  the  classificatory  nomen- 
clatures has  thrown  new  light  on  their  meaning;  although 
their  origin  in  promiscuity  or  "group-marriage"  has  not 
been  conclusively  established.  Thus  Cunow,  who  in  general 
accepts  the  former  existence  of  group-marriage  among  vari- 
ous peoples,  and  even  finds  traces  of  it  in  Australia,^  denies 

1  studies,  I,  277.  The  form  of  marriage  referred  to  is  Nair  polyandry.  So  the 
Turanian  system  is  referable  to  Thibetan  polyandry.    Cf.  Moegan,  op.  cit.,  517  ff. 

'^Primitive  Family,  181. 

^Itid.,  207, 171-208.  Staecke  is  criticised  by  Cunow,  Australneger,  165,  for  lack 
of  thoroughness  and  consistency  in  his  examination  of  the  classificatory  systems. 

*  History  of  Human  Marriage,  chap,  v,  82  £F. 

^Ibid.,  90.  Lubbock,  Origin  of  Civilization,  162-203,  criticises  Morgan's  views  as 
to  the  classificatory  systems  and  concludes  that  the  "  terms  for  what  we  shall  call 
relationships  are,  among  the  lower  races  of  men,  mere  expressions  for  the  results  of 
marriage  customs,  and  do  not  comprise  the  idea  of  relationship  as  we  understand  it; 
that,  in  fact,  the  connection  of  individuals  inter  se,  their  duties  to  one  another,  their 
rights,  and  the  descent  of  their  property,  are  all  regulated  more  by  the  relation  to 
the  tribe  than  by  that  to  the  family ;  that,  when  the  two  conflict,  the  latter  must 
give  way"  (202).  Tyloe,  On  a  Method  of  Investigating  the  Development  of  Institu- 
tions, 261-65,  discovers  a  close  relation  between  exogamy  and  the  classificatory  sys- 
tem. Thus  out  of  fifty-three  tribes  with  that  system  thirty-three  observe  the  rule  of 
exogamy  (261). 

6  The  so-called  "  Pirauru  marriage  "  of  the  Dieri  tribe  (Howitt,  in  Trans.  R.  S. 
Victoria,  I,  Part  II,  1899,  96)  and  the  "  Dilpamali  marriage  "  of  the  Kunandaburi 
tribe  (Cunow,  Australneger,  163).  Practically  the  same  is  the  Piraungaru  custom  of 
the  Urabunna  tribe  which  Spencek  and  Gillen,  Native  Tribes  of  Central  Australia, 
61  ff.,  regard  as  a  "  modified  form  of  group-marriage." 


1 


Theory  of  the  Horde  and  Mother-Right     73 

that  the  Australian  class-nomenclatures  are  derived  from 
original  group-relations;*  nor  are  they,  as  Westermarck 
believes,  ever  employed  as  mere  empty  terms  of  polite  or 
respectful  address.^  The  class-systems  arose  in  a  very  early 
recognition  of  three  generations  or  stages  of  seniority,  in 
order  to  hinder  sexual  relations  between  relatives  in  the 
ascending  and  descending  line.'  For  this  reason,  and  be- 
cause of  the  existence  among  some  backward  tribes  of  sig- 
nificant terms  of  kinship,  individual  marriage  must  as  a 
general  rule  have  existed  among  the  Australian  natives  from 
the  "earliest  times."*  Thus,  "in  its  original  form,"  the 
author  concludes,  "the  division  into  classes  is  a  striking  con- 
firmation of  Morgan's  theory,  that  the  first  step  in  the  devel- 
opment of  systems  of  relationship  consists  in  the  prevention 
of  sexual  union  between  parents  and  children  in  the  wide 
sense."*  For  the  same  reason  it  follows  that  intermarriage 
between  the  nearest  collateral  relatives  may  not  have  been 
excluded. 

Much  more  radical  are  the  conclusions  reached  by  Kohler 
in  the  monograph  in  which,  by  a  minute  examination  of 
Morgan's  tables  and  other  materials,  he  seeks  to  establish 
the  genetic  relations  subsisting  between  "totemism,  group- 
marriage,  and  mother-right,"  as  they  appear  among  the 
Dravidians,  the  Australians,  and  the  American  aborigines. 

1  CuNOW,  op.  cit,  161, 163-65.  ^Idem,  Australneger,  176. 

3  On  the  three  Altersclassen  or  Altersschichtungen,  see  ibid.,  25  £P.  The  present 
class-system  of  the  Kamilaroi,  the  author  believes,  is  not  older  than  the  rise  of  the 
gentile  organization.  "  Originally  the  division  into  classes  by  no  means  served,  as 
Morgan  and  Fison  assume,  to  exclude  sexual  intercourse  between  near  collateral 
kindred,  but  to  prevent  cohabitation  between  relatives  in  the  ascending  and  descend- 
ing line,  between  parents  and  children,  uncles  and  nieces,  aunts  and  nephews,  etc." 
Cf.  as  to  the  main  point  the  somewhat  similar  views  of  Hellwald,  Die  meiisch.  Farti- 
Hie,  158  ff. ;  Lippeet,  Kulturgeschichte,  I,  81-83;  and  Kautsky,  Kosmos,  XII,  196-98. 

*CUNOW,  op.  cit.,  161,  162:  Among  backward  tribes  parents  are  distinguished 
from  parents'  brothers  and  sisters ;  and  own  children  from  the  children  of  own 
brothers  and  sisters. 

5  Ibid.,  25.  See  the  somewhat  similar  conclusion  of  Atkinson,  The  Primal  Law., 
280-91 ;  and  compare  the  criticism  of  Cunow  by  Lang,  Social  Origins,  37, 112-18. 


74  Matrimonial  Institutions 


The  researches  of  Curr  and  Westermarck  are  criticised  as 
being  too  general  and  as  lacking  in  rigid  scientific  method.' 
Abundant  "survivals,"  such  as  the  levirate,  wife-lending,  and, 
above  all,  the  class-system,  seem  to  demonstrate  the  former 
existence  of  group-marriage  in  Australia ;  and  in  the  same 
way  the  same  result  is  reached  for  the  other  peoples  con- 
sidered. The  "key"  to  the  problem  is  found  in  totemism, 
one  of  the  most  "formative  and  vitalizing  impulses  of  man- 
kind. In  totemism  lies  the  germ  of  the  future  family  and 
state."  ^  It  is  the  characteristic  feature  of  the  social  and 
religious  life  of  the  American  Indians.  From  its  very  nature 
totemism  favors  the  rise  of  mother-right  and  group-marriage. 
No  person  can  belong  to  more  than  one  totem,  which  is 
therefore  of  necessity  exogamous.  Choice  must  be  made 
between  the  maternal  and  the  paternal  line — for  totemism 
implies  the  blood-bond.  This  choice  naturally  leads  directly 
to  mother-right;  since  the  relation  of  mother  and  child 
is  the  central  fact  in  the  genesis  of  social  experience. 
The  maternal  system  precedes  the  paternal,  and  no  trust- 
worthy examples  of  the  opposite  evolution  have  been  discov- 
ered.' Furthermore,  totemism  leads  straight  to  group- 
marriage.  For  if  two  totem-groups  may  intermarry,  it 
follows  that  the  "men  of  one  totem  may  marry  women  of 
the  other  and  vice  versa.''''  With  kinship  counted  in  the 
maternal  line,  this  fact  implies  that  a  man  may  mate  with  his 
own  daughter ;  while  the  union  of  mother  and  son  or  brother 
and  sister  would  be  excluded  because  of  the  identity  of  their 
totem.*  Totemism  is  thus  a  means  of  differentiating  matri- 
monial classes.     "The  whole  history  of  group-marriage,"  the 

1  KoHLBE,  Zur  Urgeschichte  der  Ehe,  3, 14  ff.,  151  ff.  This  paper  supplements  the 
author's  earlier  Recht  der  Australneger,  ZVB.,  VII,  321  ff.,  329  ff.,  337  ff.,  where 
Fison's  general  conclusions  are  accepted  and  the  literature  cited. 

2  "  Der  Totemglaube  gehOrt  zu  den  bildensten,  lebensvollsten,  religiOsen  Trieben 
der  Menschheit.  In  dem  Totemismus  liegt  die  kunf tige  Familien-  und  Staatenbildung 
im  Keime." — Kohleb,  op.  cit.,  27. 

3  Ibid.,  62.  i  Ibid.,  39  ff.,  41,  53  ff.,  64,  65. 


Theory  of  the  Horde  and  Mother-Right     75 

author  concludes,  "is  a  history  of  the  restriction  of  marriage 
from  totem  to  totem  by  the  separation  of  under-totems 
through  which  marriage  is  subjected  to  definite  conditions." 
Totemistic  group-marriage  appears  to  be  the  "starting-point" 
of  social  culture  for  all  the  races  of  mankind.  Whether  a 
more  primitive  stage  of  promiscuity  may  have  preceded  it, 
the  author  in  this  paper  does  not  undertake  to  establish.' 

Similar  results  are  reached  by  Spencer  and  Gillen,  who 
have  given  a  remarkably  clear  and  minute  account  of  matri- 
monial, tribal,  and  totemistic  institutions  in  central  Australia. 
So  far  as  the  Australians  are  concerned,  the  theory  that  the 
classificatory  nomenclatures  are  merely  terms  of  address  is 
positively  rejected.^  "When,  in  various  tribes,  we  find  series 
of  terms  of  relationship  all  dependent  upon  classificatory 
systems  such  as  those  now  to  be  described,  and  referring 
entirely  to  a  mutual  relationship  such  as  would  be  brought 
about  by  their  existence,  we  cannot  do  otherwise  than  come 
to  the  conclusion  that  the  terms  do  actually  indicate  various 
degrees  of  relationship  based  primarily  upon  the  existence  of 

inter-marrying  groups Whatever  else  they  may  be, 

the  relationship  terms  are  certainly  not  terms  of  address,  the 
object  of  which  is  to  prevent  the  native  having  to  employ  a 
personal  name.  In  the  Arunta  tribe,  for  example,  every  man 
and  woman  has  a  personal  name  by  which  he  or  she  is  freely 
addressed  by  others — that  is,  by  any,  except  a  member  of 
the  opposite  sex  who  stands  in  the  relationship  of  '  Jfwra'  to 
them,  for  such  may  only  on  very  rare  occasions  speak  to  one 
another."*  The  fundamental  idea  of  the  Australian  classes 
is  "that  the  women  of  certain  groups  may  marry  the  men  of 

iJ6Jd.,65, 163, 164. 

2  Spencer  and  Gillen,  Native  Tribes  of  Central  Aitstralia,  56. 

3  Ibid.,  56,  57.  "  A  man  can  only  marry  women  '  who  stand  in  the  relationship  of 
nupa,  that  is,  are  children  of  his  mother's  elder  brother's  blood  or  tribal,  or,  what  is 
the  same  thing,  of  his  father's  elder  sister.'  "  The  mother  of  a  man's  nupa  is  "  mura 
to  him  and  he  to  her,  and  they  must  not  speak  to  one  another."  This  applies  to  a 
possible  mother,  i.  e.,  the  sister  of  the  father :  ibid.,  61,  62. 


76  Matrimonial  Institutions 

others."  It  is  a  device  for  limiting  and  defining  the  inter- 
marriage of  persons  supposed  to  be  of  common  blood/ 

Crawley  likewise  holds  that  the  terms  of  the  classificatory 
systems  "are  terms  of  kinship  and  not  terms  of  address;" 
although  being  "in  origin  terms  of  relation,''''  so  far  they 
are  "terms  of  address  also."  For  "all  of  the  terms  can  be 
used  as  terms  of  address,  just  as  our  terms  of  relationship 
can  be  so  used."  The  classificatory  system,  in  some  cases, 
appears  clearly  as  a  device  to  assist  nature  in  confining  mar- 
riage within  the  same  generation.^ 

The  results  of  the  most  recent  research,  therefore,  seem 
to  have  advanced  our  knowledge  of  the  early  social  condition 
of  mankind ;  but  not  to  have  definitively  settled  the  problem 
of  the  former  existence  of  communistic  marriage.  One  rises 
from  an  examination  of  the  literature  relating  to  totemism 
and  to  the  classificatory  systems  of  relationship  with  a  feel- 
ing that  much  more  material  must  be  gathered  and  exploited 
before  we  shall  escape  entirely  from  the  domain  of  specula- 
tion as  to  their  full  meaning.^ 

1  Op.  cit.,  58.  2  Mystic  Rose,  473,  474. 

3  In  general  on  the  Australian  class-systems  see  further,  Tyloe,  Early  History 
of  Mankind,  288 ;  Wake,  Marriage  and  Kinship,  chap,  iv ;  Kovaletsky,  Tableau, 
13  ff.;  Lubbock,  Origin  of  Civilization,  104  ff.,  BeenhOft,  in  ZVR.,  IX,  6ff. ;  McLen- 
nan, Studies,  II,  304  ff.,  where  the  reports  of  Grey,  Ridley,  and  other  observers  ar« 
summarized ;  Grosse,  Die  Formen  der  Familie,  49  ff.,  58  ff.,  who,  in  the  main,  accepts 
Curr's  conclusions;  Dawson,  Australian  Aborigines,  1,  2,  26-40;  Foeest,  "Marriage 
Laws  of  N.  W.  Australia,"  Report  2d  Meeting  of  Aust,  Association  Adv.  Sci.  (1890), 
653,  654 ;  FisON,  "  Group-Marriage  and  Relationships,"  ibid.,  4th  Meeting  (Tasmania, 
1893),  688-97,  criticising  Westermarck,  717-20,  criticising  McLennan;  Mathew,  "Aus- 
tralian Aborigines,"  Jour.  R.  S.  N.  S.  Wales,  XXIII,  335-49,  criticising  Morgan  and 
McLennan.  Consult  also  the  references  in  the  Bibliographical  Note  at  the  head  of 
the  chapter. 

For  further  discussion  of  Morgan's  researches  see  BeenhOft  Verwandtschafts- 
namen  und  Eheformen;  Posada,  Theories  modernes,  52-57 ;  Scheoedee,  Das  Recht  in 
der  geschlechtl.  Ordnung,  18  ff. ;  Cunow,  Australneger,  v-vii,  11  ff. ;  Geosse,  op.  cit., 
3  ff. ;  Hellwald,  Die  niensch.  Familie,  158  ff. ;  Beauchamp,  "Aboriginal  Communal 
Life  in  America,"  Am.  Antiquarian,  IX,  343-50,  attacking  Morgan's  views,  holding 
that  proper  communism  is  not  found  among  the  red  Indians ;  Gieaud-Teulon,  Les 
origines  du  mariage,  92-101, 169  ff. ;  FisON  and  Howitt,  Kamilaroi  and  Kurnai,  99, 
101, 149,  316  ff.,  who,  for  the  Australian  groups,  sustain  Morgan  as  opposed  to  McLen- 
nan; Wake,  op.  ci-t.,  15, 19,  112,  266  ff.,  297  ff. ;  Letoueneau,  L'ivolution  du  mariage, 
432,  433,  who  accepts  Morgan's  five  forms  of  the  family  ;  KOVALEVSKY,  op.  cit.,  9, 10; 


Theory  of  the  Horde  and  Mother-Right     77 

III.     Mclennan's  constructive  theory 

McLennan's  theory'  starts  also  with  man  in  a  condition, 
as  he  conceives  it,  resembling  that  of  other  gregarious  ani- 
mals. The  unions  of  the  sexes  are  "  probably,  in  the  earliest 
times,  loose,  transitory,  and  in  some  degree  promiscuous."  ^ 
There  is  no  idea  of  consanguinity,  though  men  may  always 
have  been  held  together  by  that  "feeling  of  kindred"  which 
arises  in  "filial  and  fraternal  affection."^  Everywhere  when 
society  emerges  from  this  condition  kinship  is  traced  in  the 
female  line.  Originally  paternity  is  uncertain,*  hence  the 
recognition  of  relationship  through  the  mother  must  of 
necessity  have  preceded  the  parental  and  the  agnatic  sys- 
tems;^ and  this  order  of  development  is  never  reversed. 

Maine,  Early  Law  and  Custom,  195  ff.,  passim  ;  Peschel,  Races  of  Man,  224,  228  ff., 
who  rejects  Morgan's  conclusions ;  Lubbock,  "  Development  of  Relationships,"  Jour. 
Anth.  Inst,  Feb.,  1871. 

^Studies  in  Ancient  History,  I,  viii,  83-146.  McLennan's  views  are  some- 
what modified  and  further  developed  in  his  Patriarchal  Theory,  notably  in  chaps, 
xii  and  xiii,  181-242;  and  a  mass  of  new  material  is  presented  in  his  Studies,  2d  ser. 
(1896). 

2  In  his  two  earlier  works  McLennan  is  vague  as  to  the  exact  meaning  of  "  pro- 
miscuity "  and  "polyandry;"  but  in  his  letter  to  Darwin  {l&li).  Studies,  11,50-56, 
he  defines  these  terms,  so  that,  in  effect,  he  makes  important  concessions  to  the 
adherents  of  early  monogamy  and  polygyny  and  to  those  critics  who  have  ques- 
tioned his  theory  of  universal  phases  of  progress.  He  says,  referring  to  the  first 
series  of  (S^Mdies :  "The  import  of  my  reasoning  is  that  more  or  less  of  it  [promis- 
cuity] and  of  indifference  must  appear  in  the  hordes  or  their  sections  or  some  of 
them."    It  is  used  to  "denote  the  general  conduct  as  to  sexual  matters  of  men 

without  wives Now  I  agree  with  you  that  from  what  we  know  of  human  nature 

we  may  be  sure  that  each  man  would  aim  at  having  one  or  more  women  to  himself, 
and  cases  would  occur  wherein  for  a  longer  or  shorter  time  the  aim  would  be 
realized,  and  there  would  be  instances  of  what  we  may  call  polygyny  and  monog- 
amy—  your  first  stage I  take  it,  polygyny,  monogamy,  and  polyandry  (or  its 

equivalents)  must  have  occurred  in  every  district  from  the  first;  "  but  the  cases  of 
polyandry  would  be  much  more  numerous.  "  Polyandry,  in  my  view,  is  an  advance 
from,  and  contraction  of,  promiscuity.  It  gives  men  wives.  Till  men  have  wives 
they  may  have  tastes,  but  they  have  no  obligations  in  matters  of  sex.  You  may  be 
sure  polygyny  in  the  early  stage  never  had  the  sanction  of  group  opinion.^''  This 
late  explanation  does  not,  however,  relieve  the  author  from  responsibility  for  the 
misleading  statements  or  obscurities  of  his  earlier  works.  Cf.  the  rather  too  appre- 
ciative review  of  the  second  series  of  Studies  by  Pkofessor  Giddings,  in  Annais 
of  the  Am.  Academy,  IV,  97-100. 

i Studies,  I,  83,  88-90.  ilbid.,  chap.  viii. 

5  On  the  three  systems  of  kinship  see  Post,  Faviilienrecht,  6  ff. 


78  Matrimonial  Institutions 


Though  the  "filial  and  fraternal  affections  may  be  in- 
stinctive," they  are  "obviously  independent  of  any  theory 
of  kinship,  its  origin  or  consequences;  they  are  distinct 
from  the  perception  of  the  unity  of  blood  upon  which  kin- 
ship depends ;  and  they  may  have  existed  long  before  kin- 
ship became  an  object  of  thought."  Such  a  group  may 
have  been  held  together  chiefly  "by  the  feeling  of  kindred;" 
but  the  "  apparent  bond  of  fellowship  ....  would  be  that 
they  and  theirs  had  always  been  companions  in  war  or  the 
chase — joint-tenants  of  the  same  cave  or  grove."'  Slowly 
the  idea  of  blood-relationship  arose;  and  eventually  obser- 
Y/^vation  led  to  a  recognition  of  the  system  of  kinship  through 
the  mother.  Further  than  this,  so  long  as  paternity  re- 
mained uncertain,  primitive  men  could  not  go.  For  the 
theory  in  question,  therefore,  the  maternal  sy stemjof  Jiin- 
ship  existing  in  the  homogeneous  "groupzgtock"  is  ^the 
social  fact  of  fundamental  importance.  But  primitive  man 
was  rude,  ignorant,  relatively  helpless.  "Before  the  inven- 
tion of  the  arts,  and  the  formation  of  provident  habits,  the 
struggle  for  existence  must  often  have  become  very  serious. 
The  instincts  of  self-preservation,  therefore,  must  have  fre- 
quently predominated."  Society  would  tend  toward  one  com- 
mon type  in  which  there  was  little  place  for  the  "unselfish 
affections."  In  this  "struggle  for  food  and  security"  the 
balance  of  the  sexes  would  be  disturbed.  "As  braves  and 
hunters  were  required  and  valued,  it  would  be  to  the  interest 
of  every  horde  to  rear,  when  possible,  its  healthy  male  chil- 
dren." The  weaker  sex  must  obey  the  cruel  law  requiring 
the  "survival  of  the  fittest."  Hence  arose  the  common, 
perhaps  general,  practice  of  female  infanticide.*  The  result 
of  this  disturbance  of  the  balance  of  the  sexes,  caused  by 

1  McLennan,  op.  cit.^  I,  83,  84. 

2  Ibid.,  90,  91,  75-77 ;  II,  77-80.    After  the  appearance  of  totem  groups,  infanticide 
■would  be  checked  by  the  blood-feud  :  ibid.,  1, 145. 


Theory  of  the  Horde  and  Mother-Right     79 

female  infanticide,  was  a  series  of  customs  or  phenomena  of 
great  sociological  interest,  requiring  notice  in  the  order  in 
which  they  are  supposed  to  have  arisen. 

1.  The  natural   consequence   of    the   diminution  in  the 
number  of  women  was  to  enhance  their  relative  importance. 
Every  woman  would  now  have  several  wooers.     Rivalry  was 
fierce  and  "unrestrained  by  any  sense  of  delicacy  from  a 
copartnery  in  sexual  enjoyments."     Quarrels  and  divisions 
within  the  horde  would  be  of  frequent  occurrence.     "These 
were  the  first  wars  for  women,  and  they  went  to  form  the 
habits  which  established  exogamy."    But,  if  complete  social 
disintegration  would  be  avoided,  self-preservation  required 
a  compromise.     A  rearrangement   in  smaller  hordes  took 
place;  and  so   "we   arrive  at   last  at  groups  within  which 
harmony  was  niaintained  through  indifference  and  promis- 
cuity;" where  women,    "like  other   goods,"  were   held   in 
common;  and   "children,  while   attached  to   mothers,"  be- 
longed to  the  horde.'     We  have  reached  in  fact,   as  the  N 
first  result  of  female  infanticide,  the  "tojteaa-^ews"  or  group    / 
of  totem  kindred,  having  a  common  name,  taken  from  some    I 
plant,  heavenly  body,  or  animal,  whose  image  is  sometimes 
tattooed  upon  their  bodies,  and  which  is  sometimes  revered   .-^ 
as  an  ancestor,  sometimes  as  an  ancestral  god.^  x-  7/ 

1  Ibid.,  91-93. 

2  On  totemism  see  McLennan,  Patriarchal  Theory,  206,  207,  227-29,  230-36; 
Studies,  II,  368  fE.,  passim;  Morgan,  Ancient  Society,  49  ff.,  who  gives  many  facts 
relating  to  totem  gentes  among  the  American  Indians  and  elsewhere;  Wake,  Mar- 
riage and  Kinship,  Index;  FisoN  and  Howitt,  Kamilaroi  and  Kurnai,  40-49, 165-71, 
who  criticise  Ldbbock,  Oi-igin  of  Civilization,  210,  338  ff.,  263;  Staecke,  Primitive 
Family,  20  ff.,  29  ff.,  passim ;  Tyloe,  Primitive  Culture,  I,  42,  213, 215.  Westermaeck, 
Human  Marriage,  chap,  ix,  denies  that  tattooing  is  fundamentally  connected  with 
totemism,  and  holds  that  it  is  a  form  of  ornamentation  to  serve  as  a  means  of  sexual 
attraction.  Cf.  Mucke,  Horde  und  Familie,  77 ;  Floss,  Das  Weib,  I,  94  ff. ;  196  ff. 
Bachofen,  Mutterrecht,  335;  Feasee,  Totemism;  idem.  Golden  Bough,  III,  416  ff. 
Ceawley,  Mystic  Rose,  249,  398,  457,  470;  Hellwald,  Die  mensch.  Familie,  190  ff. 
Fletchee,  "A  Study  from  the  Omaha  Tribe,"  Procds.  A.  A.  A.  ,».,  XLVI,  325-34 
idem,  "Emblematic  Use  of  the  Tree  in  the  Dakotan  Group,"  iiid.,  XLV,  191-209 
especially  Kohlee,  Zur  Urgeschichte  der  She,  27  ff. ;  and  Spencee  and  Gillen, 
Native  Tribes  of  Central  Australia,  containing  the  best  and  fullest  account  of  the 
Australian  forms  of  the  institution. 


80  Matrimonial  Institutions 

2.  The  next  institution  originating  in  scarcity  of  women 
is  polyandry,  a  form  of  sexual  relations  which,  by  the  adhe- 
rents of  the  horde-theory,  is  regarded  as  the  ©ariieat jfcype  of 
tbft  family,  properly  so  called:  a  family  resting  upon  mar- 
riage, that  is,  upon  a  courtship  "of  men  and  women,  pro- 
tected by  public  opinion." '  It  is  olfipficiaLintexest^-^secause 
in  its  progressive  phases  it- is- -held- to  be  the  medium  of 
transition  from  the  maternal  to  the  parental  and  agnatic 
systems  of  kinship ;  and,  therefore,  through  the  aid  of  con- 
tract in  the  form  of  wife-purchase,  to  modern  conceptions  of 
the  marriage  relation.  Polyandry  is  represented  as  a  uni- 
versal phase  of  social  evolution,  constituting  the  first  gen- 
eral modification  of  promiscuity/  Of  this  there  are  two 
principal  forms  with  intermediate  stages.  In  Nair*  poly- 
andry, the  lowest  type,  we  find  a  condition  of  sexual  rela- 
tions closely  bordering  upon  the  grossest  communism.  The 
"wife  lives  not  with  her  husbands,  but  with  her  mother  or 
brothers;"  and,  under  certain  "restrictions  as  to  tribe  and 
caste,"  she  is  free  to  choose  her  husbands  or  lovers,  these 
not  being  necessarily  related  to  each  other.     Here  kinship 

1  For  McLknnan's  best  statement  as  to  the  nature  and  prevalence  of  polyandry 
see  his  interesting  letter  to  Darwin,  Studies,  II,  50-56,  already  mentioned. 

2  Ibid.,  I,  93  £F.,  97,  133  ff. ;  II,  47-56;  Patriarchal  Theory,  267  ff.  In  general,  on 
polyandry,  see  Marshall,  A  Phrenologist  amongst  the  Todas,  190-232;  Stakcke,  op. 
cit.,  128-40,  77  £F.,  passim;  Smith,  Kinship  and  Marriage,  121  fE.,  277-79;  FisoN  AND 
HowiTT,  op.  cit.,  144  ff. ;  Wake,  op.  cit.,  134-78,  Index ;  Gieaud-Teulon,  Origines  du 
mariage,  150  ff.,  434  ff. ;  Westeemaeck,  op.  cit.,  chaps,  xx-xxii,  3,  115-17,  547-49; 
Mayne,  Hindu  Law  and  Usage,  60  ff. ;  Spencee,  Principles  of  Sociology,  I,  672-81, 
&41  ff. ;  Lubbock,  Origin  of  Civilization,  79,  143  ff. ;  Schmidt,  Jus  primae  noctis,  35, 
36,  319,  320;  Post,  Familienrecht,  54-63;  idem,  Afrikanische  Jurisprudenz,  I,  40,  303; 
idem.  Die  Geschlechtsgenossenschaft,  16  ff. ;  Letoueneau,  Vivolution  du  mariage,  40, 
49,  90-109;  Mason,  Woman's  Share  in  Primitive  Culture,  221,  222;  Maine,  Early  Law 
and  Custom,  106, 123,  200;  Feiedeichs,  "Ursprung  des  Matriarchats,"  ZVB.,  VIII, 
371  ff.;  idem,  " Familienstufen  und  Eheformen,"  ibid.,  X,  257,  258;  Mucke,  op.  cit, 
lBl-38;  Kautsky,  "  Entstehung  der  Ehe  und  Familie,"  Kosmos,  XII,  258,  264,  344-48; 
BeenhOft,  in  ZVR.,  IX,  12  ff. ;  KoHLEE,  op.  cit.,  143 ;  Geosse,  Die  Formen  der  Fami- 
lie, 117  ff.;  HELLWAiiD,  op.  cit.,  241-61;  Schneidee,  Die  NaturvOlker,  II,  459  ff. ; 
AcHELis,  Entwicklung  der  Ehe,  28  ff.;  Ellis,  in  Pop.  Sci.  Monthly,  Oct.,  1891. 

3  McLennan  believes  this  form  to  be  wide-spread.  It  is  found  in  Ceylon,  among 
the  Kasias  and  Saporogian  Cossacks,  and  elsewhere.  The  higher  and  lower  forms 
often  appear  together  among  the  same  people :  Studies,  I,  99  ff.  "Beena"  marriage 
of  Ceylon  is  believed  to  be  a  modification  of  their  polyandry. 


Theory  of  the  Horde  and  Mother-Right     81 

and  inheritance  are,  of  course,  in  the  female  line.  "No 
Nair  knows  his  father,  and  every  manTooks  upon  his  sister's 
children  as  his  heirs."'  In  a  transitional  stage  the  wife  has 
a  home  of  her  own,  cohabiting  with  her  husbands  according 
to  fixed  rules.  The  highest  type  of  polyandry  is  found  in 
Tibet;  and  in  this  case  there  is  a  close  approach  to  the 
essential  elements  of  the  modern  family.  The  wife  lives  in 
the  home  of  her  husbands,  who  are  near  relatives,  usually 
brothers.  It  is  the  prerogative  of  the  eldest  brother  to 
choose  the  wife.  All  the  children  are  assumed  to  belong  to 
him,  and,  as  a  matter  of  fact,  the  first-born  is  usually  known 
to  be  his.  Paternity  therefore  is  not  entirely  uncertain, 
while  the  father's  blood  is  always  known. ^  The  sam'e  type 
of  polyandry,  somewhat  more  advanced,  appears  among  the 
Dravidian  Todas  of  India.  Here  monogamy  and  polyandry 
exist  side  by  side.  One  man,  for  example,  may  have  a  wife 
exclusively  his  own,  while  his  brothers  may  choose  one  in 
common.  Usually  when  one  brother  has  taken  a  woman  to 
wife,  and  paid  the  dower  to  her  parents,  the  other  brothers 
or  very  near  relatives,  all  living  together,  may  gain  the 
rights  of  husbands,  "if  both  he  and  she  consent,"  by  simply 
providing  their  respective  shares  of  the  dower,  which  almost 
invariably  consists  of  from  one  to  four  buffaloes.^  According 
to  Marshall,  "no  females,  whether  married  or  single,  possess 
property ;  but,  under  all  circumstances  of  life,  are  supported 
by  their  male  relations,  being  fed  from  the  common  stock." 
When  "a  father  dies,  his  personal  property  is  divided  equally 
among  all  his  sons.     If  the  deceased,  being  an  elder  brother, 

1  Buchanan,  Jow-ney,  II,  594;  McLennan,  op.  cit.,  I,  102.  Cf.  on  the  Nairs, 
GrBAUB-TEULON,  op.  cit.,  150-64;  Staecke,  op.  cit,  83-87, 133  ff.;  Smith,  Kinship  and 
Marriage,  122;  Letouenead,  op.  cit.,  99-101. 

2  Cf.  Spencee,  Principles  of  Sociology,  I,  676,  677. 

3  Maeshall,  op.  cit,  210.  According  to  Fead  Janssen  (Glohiis,  XLIII,  S71),  it 
is  the  custom  for  the  "  young  wife  to  become  the  spouse  of  all  the  brothers  of  her 
husband;  her  first  child  counts  as  that  of  the  eldest  brother,  the  second  as  that  of 
the  second,  and  so  forth."    Cf.  Hellwald,  op.  cit.,  246. 


82  Matrimonial  Institutions 


should  have  no  sons,  his  next  brother  inherits  all  the  prop- 
erty. All  children  of  both  sexes  belong  to  the  father's 
family;  and  inheritance  runs  through  the  male  line  only. 
Thus  (1)  if  a  widow  should  re-marry,  her  sons  by  both  mar- 
riages have  claims  on  their  respective  father's  property. 
(2)  If  one  or  more  women  are  in  common  to  several  men, 
each  husband  considers  all  the  children  as  his — though 
each  woman  is  mother  only  to  her  own — and  each  male 
child  is  an  heir  to  the  property  of  all  of  the  fathers."  More- 
over, there  exists  a  kind  of  levirate.  "In  order  to  avoid  the 
complications  that  would  arise,  in  the  matter  of  food  and  the 
guardianship  of  property,  from  the  re-marriage  of  widows, 
if  they  entered  other  families  taking  their  children  with 
them,  either  a  brother  or  other  near  relation  of  her  deceased 
husband  takes  her  to  wife."  She  "remained  in  the  family" 
is  the  Toda  expression.^  "  Now  if  we  consider  that  one  or 
more  brothers  may  each  become  the  husband  of  separate 
wives  by  virtue  of  having  each  paid  a  dower,  and  that 
younger  brothers  as  they  grow  to  age  of  maturity,  and 
other  brothers  as  they  become  widowed,  may  each  either 
take  separate  wives  or  purchase  shares  in  those  already  in 
the  family,  we  can  at  once  understand  that  any  degree  of 
complication  in  perfectly  lawful  wedded  life  may  be  met 
with,  from  the  sample  of  the  single  man  living  with  a  single 
wife  to  that  of  the  group  of  relatives  married  to  a  group  of 
wives.  We  begin  to  see  also  why  tribes  following  polyan- 
drous  habits  endeavor  to  prevent  further  complications  by 
making  widows  'remain  in  the  family.'"  It  follows  that 
economic  motives  even  here  are  influential  in  molding  matri- 
monial institutions.  The  same  motives,  the  scarcity  of  sub- 
sistence, are  likewise  the  main  cause  of  the  very  extended 
female  infanticide  which  widely  prevailed  previous  to  1822, 

1  Marshall,  op.  cit.,  206,  207.    To  be  a  barudi  or  widow  or  a  baruda  or  widower 
is  a  term  of  reproach :  ibid.,  203. 


Theory  of  the  Horde  and  Mother-Right     83 

when  the  Madras  government  "put  a  pressure  on  the  Todas, 
in  order  to  impel  them  to  forsake  their  murderous  practice."" 
It  was  formerly  the  habitual  custom  to  smother  "all  daugh- 
ters in  every  family,  except  one  or  sometimes  two.'"  The 
Todas  are  an  in-and-in  breeding  people.  "Although  there 
are  degrees  of  kinship,  within  whose  limits  the  union  of  the 
sexes  is  held  in  actual  abhorrence,  yet  half  brothers  and 
sisters  are  not  included  amongst  the  objectionables."^ 

Accordingly,  through  polyandry,  it  is  held,  the  transition 
to  the  parental  or  paternal  system  of  kinship  becomes  pos- 
sible, and  sooner  or  later  it  usually  takes  place.  Among  the 
Todas  father-right  is  fully  established.  In  Tibet  the  inheri- 
tance goes  to  the  brothers  in  the  order  of  birth ;  and,  failing 
these,  to  their  eldest  son,  who,  as  already  seen,  is  often 
known  to  be  the  eldest  brother's  child.  This  rule,  it  is  main- 
tained, may  readily  lead  to  agnation.  Nevertheless  the  primi- 
tive custom  of  mother-right  was  very  tenacious.  Resisted  by 
the  gentile  organization  and  the  blood-feud,  the  transition  was 
slow  and  painful.  It  was  facilitated  by  contract  and  initia- 
tion.^ A  woman  might  be  bought  with  the  understanding 
that  the  children  should  belong,  not  to  her  own  clan,  but  to 
that  of  her  husband.  Or,  when  contract  alone  was  not  suffi- 
cient to  overcome  the  resistance  of  religion  and  the  blood- 
feud,  the  same  result  might  be  obtained  by  purchase,  followed 
by  initiation  into  the  sacred  rites  of  the  husband's  kindred.* 
Moreover,  as  in  Tibet  and  among  the  Todas,  wife-purchase 

1  Ibid.,  Ill,  196,  213. 

"^Ibid.,  221.  In  this  regard  as  in  many  others  the  Todas  resemble  the  Veddahs: 
Saeasin,  Die  Weddas  von  Ceylon,  I.  465-67.  For  a  good  account  of  polyandry  among 
the  Todas  and  other  peoples  see  Hellwald,  op.  cit.,  241  £F.,  246  ff. 

3  On  wife-purchase  and  initiation,  as  a  means  of  transition  to  the  paternal  sys- 
tem, see  McLennan,  Patriarchal  Theory,  232-38. 

*Thus,  in  Guinea,  according  to  Bosman,  in  ordinary  marriages,  even  when  the 
wives  were  purchased,  the  children  belonged  to  the  mother.  "  It  was  customary, 
however,  for  a  man  to  buy  and  take  to  wife  a  slave,  a  friendless  person  ....  and 
consecrate  her  to  his  Bossum  or  god."  In  this  case  the  "  children  would  be  born  of 
his  kindred  and  worship."— Bosman,  Description  of  Guinea,  161 ;  McLennan,  op.  cit., 
235,  236. 


84  Matrimonial  Institutions 


or  its  survival  is  sometimes  found  in  connection  with  poly- 
andry.' 

McLennan  believes  that  Tibetan  polyandry  has  been 
nearly,  if  not  quite,  universal,  and  that  it  is  an  "advance 
upon  the  Nair  type."  Many  evidences  of  its  alleged  actual 
existence  in  present  and  former  times  are  adduced ;  and  where 
the  institution  is  not  found  reliance  is  placed  upon  the  pres; 
ence  of  certain  customs,  such  as  the  Niyoga,  or  the  "  appointed 
daughter,"  of  the  Hindus,  the  Hebrew  levirate,  and  the  inher- 
itance by  brothers,  which  are  held  to  be  its  survivals.^ 

3.  The  disparity  in  the  number  of  women  would  next 
produce  the  custom  of  wife::£apt«re.  The  normal  condition 
of  primitive  men  is  assumed  to  be  that  of  strife,'  Women 
would  naturally  be  sought  as  the  most  valuable  of  the  spoils 
of  war.     This  would  lead  to  polygyny.     Since  there  can  be 

1  Mason,  Woman^s  Share  in  Primitive  Culture,  222;  Rockhill,  Land  of  the 
Lamas,  213,  339;  Marshall,  op.  cit,  210  ff.,  217,  219. 

2  An  "  appointed  daughter  "  is  one  assigned  by  contract  in  marriage  to  bear  an 
heir  to  her  father  who  has  no  son.  In  the  Niyoga  a  son  is  begotten  upon  the  wife,  in 
the  lifetime  of  the  husband,  by  a  person  appointed  for  that  purpose.  The  levirate 
and  other  like  expedients  existed  also  among  the  Hindus  :  Ordinances  of  Manu,  IX, 
53,  57-69,  97, 143  ff. :  Buknell  and  Hopkins,  253  ff. ;  "  Gautama,"  Sacred  Books  of  the 
East,  II,  267  ff . ;  Mayne,  Hindu  Lata  and  Usage,  chap,  iv ;  McLennan,  Patriarchal 
Theory,  268,  286  ff . ;  Leist,  Alt-arisches  Jus  Gentium,  122,  123;  Jolly,  The  Hindu 
Law  of  Partition,  144-66 ;  idem,  Rechtliche  Stellung  der  Frauen  bei  den  alten  Indern, 
36-38  (levirate).  For  the  Hebrew  form  of  the  levirate,  see  Deuteronomy  25:5-11, 
where  the  brother  is  required  to  "  perform  the  duty  of  an  husband's  brother  to  the 
widow."  The  book  of  Ruth  contains  many  illustrations  of  primitive  family  custom. 
Sir  Heney  Maine,  Early  Law  and  Custom,  chap,  iv,  regards  the  Niyoga,  the  levi- 
rate, and  similar  expedients  for  supplying  a  male  heir,  as  fictions,  under  the  influence 
of  the  worship  of  male  ancestors,  for  maintaining  the  agnatic  famUy.  J.  D.  Mayne 
explains  the  Niyoga  on  the  theory  that  the  lord  and  owner  of  the  wife  is  the  lord  of 
the  child,  physical  paternity  not  being  essential;  and  the  levirate  is  an  extension  of 
the  Niyoga.  McLennan,  op.  cit.,  266-339,  criticises  the  theories  of  the  two  last-named 
writers.  See  also  Kohlee,  Zur  Vrgeschichte  der  Ehe,  153;  Hellwald,  Die  mensch. 
Familie,  262,  274,  470;  Schneider,  Die  Naturv6lker,  I,  25;  II,  461 ;  Achelis,  Entwick- 
lung  der  Ehe,  36  ff. ;  Redslob,  Die  Levirats-Ehe  bei  den  Hebr&ern,  1  ff. ;  Starcke, 
Primitive  Family,  141-58,  159-70  (inheritance  by  brothers) ;  Spencer,  Principles  of 
Sociology,  I,  679-81 ;  Letourneau,  V^volution  du  mariage,  chaps,  xii,  xv;  FisoN  and 
HowiTT,  Kamilaroi  and  Kurnai,  146, 147 ;  Wake,  Marriage  and  Kinship,  171-78, 436  ff. ; 
especially  Westermarck,  Human  Marriage,  3,  510-14,  who  cites  the  literature. 
Various  examples  are  mentioned  in  ZVR.,  Ill,  394-407,  419,420;  VI,  280  (Germany) ; 
VIII,  242;  X,  81;  XI,  237. 

3  McLennan,  Studies,  I,  23,  72,  73,  passim. 


Theory  of  the  Horde  and  Mother-Right     85 

no  certainty  as  to  fatherhood  where  the  practice  of  seizing 
the  women  from  hostile  tribes  obtains,  wife-capture  is  the 
means  of  maintaining  the  system  of  counting  kinship  through 
the  women  only;  and  the  existence  of  that  system,  at  some 
time,  must  be  inferred  wherever  wife-capture  or  its  form  in 
the  marriage  ceremony  is  discovered. 

4.  Wife^capture  leads  directly  to  exogamy,  or  the  rule  of 
not  marrying  withinTThe  gtoup  of  recognized  kindred ;  that 
is,  at  first,  among  those  having  the  same  totem.  Exogamy 
is  therefore  not  regarded  as  the  result  of  a  prejudice  against 
intermarriage  of  those  related  by  blood.  For  a  time,  doubt- 
less, marriage  within  and  without  the  group  was  practiced 
indifPerently,  as  pleasure  or  opportunity  favored.  But 
eventually  the  possession  of  a  foreign  woman  was  looked 
upon  as  the  more  honorable  or  respectable;  and  so  at  last 
marriage  within  the  kindred  was  entirely  forbidden.  With 
the  rise  of  wife-capture  the  original  homogeneity  of  the 
group  gave  place  to  a  growing  heterogeneity.  Soon  many 
alien  stocks  were  represented  in  the  horde.  Where  polygyny 
existed,  or  where  several  wives  were  taken  in  succession,  the 
same  family  might  comprise  children  representing  several 
totems.  These  children  like  their  mothers  were  counted  as 
foreigners.  Thus  a  modified  form  of  exogamy  arose.  "So 
far  as  the  system  of  infanticide  allowed,  the  hordes  contained 
young  men  and  women  accounted  of  different  stocks,  who 
might  intermarry  consistently"  with  the  original  rule  of 
exogamy.  "Hence  grew  up  a  system  of  betrothals,  and  of 
marriage  by  sale  and  purchase."  But  the  effect  of  the  sys- 
tem of  kinship  through  males,  when  it  superseded  the  mater- 
nal system,  was  to  "arrest  the  progress  of  heterogeneity," 
and  to  "restore  the  original  condition  of  affairs  among  exoga- 
mous  races,  as  regards  both  the  practice  of  capturing  wives 
and  the  evolution  of  the  forms  of  capture."' 

1  Ibid.,  1, 127-40, 50-71. 


86  Matrimonial  Institutions 

It  would  be  ungrateful  not  to  acknowledge  freely  the 
service  which  McLennan  and  his  adherents  have  rendered  to 
the  social  history  of  mankind.  They  have  brought  to  light 
a  mass  of  very  important  facts  which  it  is  highly  beneficial 
for  us  to  know.  It  cannot  be  denied  that  wife-capture, 
exogamy,  and  the  custom  of  taking  kinship  from  the  mother 
have  very  widely  prevailed  among  primitive  races.  It  is 
not  so  certain,  however,  that  the  right  explanation  of  their 
origin  or  of  their  relation  to  one  another  has  been  given. 
In  the  first  place,  criticism,  notably  that  of  Herbert  Spencer,* 
has  detected  fatal  weakness  and  inconsistency  in  the  argu- 
ment by  which  Mr.  McLennan  has  sought  to  establish  his 
theory.  It  is  doubtful,  for  instance,  whether  female  infanti- 
cide has  been  so  important  a  factor  in  social  evolution.^ 
But,  granting  that  it  has  generally  prevailed,  it  is  hard  to 

1  Princiijles  of  Sociology,  1,  641  ff.  In  general  for  criticism  and  summary  of 
McLennan's  views  see  Morgan,  Ancient  Society,  509-21;  Maine,  Early  Law  and 
Cvstom,  106  fE.,  123,  124,  150,  192-228;  Gieaud-Teulon,  Origines  du  manage,  102  ff., 
passim;  Smith,  Kinship  and  Marriage,?^,  118, 121, 129  ff.,  2.30;  FisoN  AND  HowiTT, 
Kamilaroi  and  Kurnai,  23  ff.,  67, 101  ff.,  130  ff. ;  Lubbock,  Origin  of  Civilization,  102, 
109,  130,  143  ff.,  passim;  Schueman,  The  Ethical  Import  of  Darwinism,  chap,  vi; 
Mason,  Woman's  Share  in  Primitive  Culture,  chap,  x ;  Stakcke,  Primitive  Family, 
94  ff.,  128 ff.,  141  ff.,  passim;  Wake,  Marriage  and  Kinship,  14  ff.,  58  ff.,  134ff.,  253ff., 
297  ff.,  passim;  idem,  "  Primitive  Family,"  Jour.  Anth.  Inst.,  August,  1879 ;  Kautsky, 
in  Kosmos,  XII,  258 ff.;  Westeemakck,  Index;  Spencer,  Various  Fragments,  70 ff.; 
GOMME,  "  Primitive  Human  Horde,"  Jour.  Anth.  Inst.,  XVII,  118-33 ;  who  is  criticised 
by  Wake,  "  Primitive  Human  Horde,"  ibid.,  November,  1887,  276  ff. 

2  Such  is  the  view  of  Lubbock,  Origin  of  Civilization,  103, 129, 134,  135 ;  Westee- 
marck,  Human  Marriage,  4G6,  472,  473,  547;  FisON  and  Howitt,  op.  cit.,  133  ff., 
171  ff.,  190,  357 ;  Wake,  Marriage  and  Kinship,  75  ff.  "  It  is  not  proved  that  the  tribes 
which  practice  child-murder  put  to  death  the  female  infants  by  preference." — 
Staecke,  op.  cit.,  131  ff.  Such  is  also  the  opinion  of  FisoN  and  Howitt,  loc.  cit.; 
Lubbock,  op.  cit,  103;  Darwin,  Descent  of  Man,  II,  364,  591-93;  and  Gieaud- 
Teulon,  op.  cit.,  110-16.  See  also  Smith,  Kinship  and  Marriage  in  Early  Arabia,  129, 
130,  279-85;  Friedrichs,  "  Familienstufen,"  ZVR.,  X,  219-37;  Floss,  Das  Kind,  II, 
243-64 ;  idem.  Das  Weib,  I,  2.50,  251 ;  Geosse,  Die  Formen  der  Familie,  36 ;  Schneider, 
Die  NaturvOlker,  I,  297  ff. ;  Martin,  Hist,  de  lafemme,  3ff. ;  and  various  examples 
in  Zrfi.,VlI,  355,  374;  IX,  14  ft'.  (Todas) ;  X,  122;  XI,  427  (Kamerun) ;  Brouardel, 
U infanticide  (Paris,  1897);  Marshall,  A  Phrenologist  amongst  the  Todas,  108 ff., 
190  ff.;  Nelson,  "The  Eskimo  about  Bering  Strait,"  in  XVIII.  Rep.  of  Bureau  of 
Eth.,  Part  I,  289;  Chambeelain,  The  Child,  etc.,  110  ff. 

In  his  second  series  of  Studies,  74,  111,  McLennan  defends  his  view  as  to  the 
prevalence  of  female  infanticide  and  presents  a  mass  of  facts  relating  to  it  among 
many  peoples.  Faeeee,  Early  Wedding  Customs,  224,  denies  that  infanticide  is  the 
cause  of  exogamy. 


Theory  of  the  Horde  and  Mother-Kight     87 

see  how  this  would  greatly  disturb  the  "balance  of  the 
sexes."  For  "tribes  in  a  state  of  chronic  hostility  are  con- 
stantly losing  their  adult  males,  and  the  male  mortality  so 
caused  is  usually  considerable.  Hence  the  killing  many 
female  infants  does  not  necessitate  lack  of  women :  it  may 
merely  prevent  excess."  McLennan's  fundamental  "assump- 
tion is  therefore  inadmissible. "  '  Again  it  is  held  that  female 
infanticide,  "rendering  women  scarce,  led  at  once  to  poly- 
andry within  the  tribe,  and  the  capturing  of  women  from 
without."  But  "where  wife-stealing  is  now  practiced  it  is 
commonly  associated  with  polygyny;"^  while  conversely, 
polyandry  does  not  "distinguish  wife-stealing  tribes,"  such 
as  the  Tasmanians,  Australians,  Dakotas,  and  Brazilians. 
'-'Contrariwise,  though  it  is  not  a  trait  of  peoples  who  rob  one 
another  of  their  women,  it  is  a  trait  of  certain  rude  peoples 
who  are  habitually  peaceful;"  for  instance,  the  Eskimo, 
"who  do  not  even  know  what  war  is."  Furthermore,  if 
wife-capture  and  exogamy  are  at  once  practiced  by  a  cluster 
of  adjacent  tribes,  the  scarcity  of  women  would  not  be 
relieved.  Inevitably  the  weaker  tribes  would  "tend  toward 
extinction;"  and  in  the  meantime,  if  a  part  only  of  their 
female  infants  were  killed,  they  must  deliberately  "rear  the 
remainder  for  the  benefit"  of  their  enemies.'  Nor,  as 
Starcke  has  pointed  out,  is  there  anything  in  a  "scarcity  of 
women  which  could  lead  a  community  accustomed  to  promis- 
cuous intercourse  to  adopt  polyandry ;  on  the  contrary,  such 
a  scarcity  would  make  it  more  difiicult  to  set  limits"  to  pro- 
miscuity.     "Marriage,   or  the  exclusive  possession   of   one 

1  Spencer,  op.  cit.,  I,  646. 

"^Ibid.,  646,  647,  But  McLennan  meets  this  difficulty  by  insisting  that  wife- 
stealing,  among  polyandrous  peoples  would  lead  to  polygyny  on  the  part  of  the  most 
successful.  This  would  also  explain  the  inconsistency  alleged  by  Spencer  (648) 
that  polygyny  and  polandry  sometimes  coexist,  as  among  Fuegians,  Caribo,  Eskimo, 
Warrens,  Hottentots,  and  the  ancient  Britons.  See  McLennan,  Studies,  1, 145, 146; 
and  cf.  Post,  Familienrecht,  62. 

3  Spencer,  op.  cit.,  I,  649. 


88  Matrimonial  Institutions 


woman  by  one  or  more  men,  would  become  more  easy  in 
proportion  to  the  increase  in  the  number  of  women,  since 
the  conflict  between  the  lusts  of  the  men  would  necessarily 
become  less  intense."'  McLennan  believes  that  exogamy 
has  "been  practiced  at  a  certain  stage  among  every  race  of 
mankind;"  and  that  endogamy,  or  the  custom  of  marrying 
within  the  kindred,  is  a  "form  reached  through  a  long  series 
of  social  developments."  ^  Yet,  inconsistently  with  this,  he 
admits  that  "the  separate  endogamous  tribes  are  nearly  as 
numerous,  and  they  are  in  some  respects  as  rude,  as  the 
separate  exogamous  tribes."  He  goes  even  farther,  declar- 
ing that  among  a  variety  of  tribes,  belonging  to  "  one  and 
the  same  original  stock,"  endogamy  and  exogamy  are  found 
existing  side  by  side.^ 

Such  are  some  of  the  results  gained  simply  from  an 
examination  of  the  reasoning  of  McLennan.  They  have 
been  here  enumerated,  not  only  because  they  afford  an 
excellent  illustration  of  the  extreme  complexity  of  social 
problems,  but  also  because  they  may  warn  us  against  the 
perils  of  hasty  speculation.  It  is  not  merely  in  matters  of 
detail  that  the  doctrine  of  the  horde  and  promiscuity  has  met 
with  resistance.  Its  very  foundations  have  recently  been 
powerfully  assaulted  by  the  adherents  of  a  totally  different 
view  of  the  origin  and  development  of  the  human  family. 
How  the  phenomena  of  marriage  and  kinship  will  appear 
when  seen  in  a  new  light,  we  shall  next  try  to  discover. 

^Primitive  Family,  132.  Other  objections  are  brought  forward  by  this  able 
writer.  "  It  has  been  suggested  that  the  motive  for  the  murder  of  female  infants  is 
the  fear  of  becoming  the  object  of  the  predatory  instincts  of  other  tribes ;  whence  we 
must  conclude  that  the  tribe  which  keeps  its  women  alive  is  tolerably  strong;  those 
tribes  which  lack  women  cannot,  therefore,  obtain  them  by  violence  to  any  great 
extent.  It  also  seems  to  be  a  strange  thing  to  kill  the  female  infants  from  a  dread 
of  being  exposed  to  attack,  and  at  the  same  time  to  seek  to  increase  the  number  of 
women  by  carrying  them  off  by  violence  from  other  tribes." — Ibid.,  132. 

2SPENCEE,  op.  cit.,  1,  644. 

3  McLennan,  Studies,  I,  78-80,  124,  142-45,  147  ff . ;  II,  57  ff.  Cf.  his  article  on 
"Exogamy  and  Endogamy,"  Fortnightly  Review,  XXI,  884  ff.,  where  he  seems  to 
waver  somewhat  in  his  conclusions  on  this  point. 


CHAPTER  III 

THEORY  OF  THE  ORIGINAL  PAIRING  OR  MONOGAMOUS 

FAMILY 

[Bibliographical  Note  III. — The  theory  of  the  pairing  family  is 
not  so  much  the  result  of  a  reaction  against  the  theory  of  promiscuity 
as  it  is  a  consequence  of  the  perception  that  the  problems  of  society 
can  only  be  solved  by  appealing  to  the  laws  of  human  life  and  organic 
evolution.  Hence  Starcke's  highly  original  Primitive  Family  (New 
York,  1889),  and  Westermarck's  more  elaborate  and  very  able  treatise 
on  Human  Marriage  (London  and  New  York,  1891),  showing  the  influ- 
ence in  some  passages  of  Starcke's  acute  reasoning,  may  fairly  be 
regarded  as  epoch-making.  Important  also  are  Wake's  Marriage  and 
Kinship  (London,  1889)  and  Letourneau's  U6volution  du  mariage 
(Paris,  1888),  which  is  supplemented  by  his  Sociology  Based  upon 
Ethnology  (London,  1893).  These  writers  have  carried  farther  the  sug- 
gestions of  Darwin,  Descent  of  Man  and  Animals  and  Plants  under 
Domestication  ;  and  Spencer,  Principles  of  Sociology  (New  York,  1879), 
who  had  already  thrown  doubt  upon  the  communistic  theory.  A  similar 
general  conclusion  is  reached  in  the  valuable  monograph  of  Kautsky, 
"Entstehung  der  Ehe  und  Familie,"  in  Kosmos,  XII  (Stuttgart,  1882), 
whose  original  "hetairism"  is  but  "defective  monogamy;"  and 
Peschel's  Races  of  Man  (London,  1889)  tends  in  the  same  direction. 
Hildebrand  likewise  rejects  the  communistic  theory  in  his  inaugural 
address  on  Das  Problem  einer  allgemeinen  Entwicklungsgeschichte  des 
Rechts  und  d,erSitte  (Graz,  1894) ;  and  this  work  should  be  read  in  con- 
nection with  his  Recht  und  Sitte  avf  den  verschiedenen  wirthschaft- 
lichen  Kulturstufen  (Jena,  1896).  On  the  other  hand,  Kulischer,  in 
"Die  geschlechtliche  Zuchtwahl  bei  den  Menschen  in  der  Urzeit,"  in 
ZFE.,  VIII,  defends  original  communal  marriage  against  the  views  of 
Darwin.  Of  special  value,  likewise,  for  this  chapter  are  Grosse,  Die 
Formen  der  Familie  (Freiburg  and  Leipzig,  1896) ;  which  is  favorably 
examined  by  Cunow,  "  Die  okonomischen  Grundlagen  der  Mutterherr- 
schaf t,"  in  Nev^  Zeit,  XVI ;  Keane,  Ethnology  (2d  ed.,  Cambridge,  1896) ; 
idem,  Man:  Past  and  Present  (Cambridge,  1899);  Frerichs,  Naturge- 
schichte  des  Menschen  (2d  ed.,  Norden,  1891) ;  Bagehot,  Physics  and 
Politics  (London,  1872) ;  as  are  also  the  works  of  Posada,  Crawley, 
Lang,  and  Hellwald  elsewhere  mentioned. 

For  the  family  among  the  lower  animals  in  addition  to  Letourneau, 
Hellwald,  and   Westermarck,  consult  Brehm,  Tierleben  (Leipzig  and 


90  Matrimonial  Institutions 


Vienna,  1891) ;  his  Bird-Life  (London,  1874) ;  Herman  Mtiller,  Am  Neste 
(Berlin,  1881) ;  Schaffle,  Ban  und  Leben  des  socialen  Korpers  (Tubingen, 
1881) ;  Espinas.  Des  soci&Us  animales  (2d  ed.,  1878) ;  Groos,  Die  Spiele 
der  Thiere  (Jena,  1896),  or  the  English  translation  (New  York,  1898) ; 
and  Wagner,  "Die  Kulturzuchtung  des  Menschen  gegeniiber  der  Natur- 
zuchtung  im  Tierreich,"  in  Kosmos,  1886,  I.  In  this  connection  read 
also  Houzeau,  Etudes  sur  les  faculUs  mentales  des  animaux  (Mons, 
1872) ;  Vignoli,  Ueher  das  Fundamentalgesetz  des  Intelligenz  im  Tier- 
reiche  (Leipzig,  1879) ;  and  Salt,  Animals'  Bights  (New  York,  1894). 

On  the  problems  of  sex  and  kinship  mentioned  in  the  text  see 
Geddes^nd  Thompson,  Evolution  of  Sex  (New  York,  n.  d.) ;  Ellis,  Man 
and  Woman  (London,  1896) ;  Finck,  Primitive  Love  (New  York,  1899), 
vigorously  attacking  some  of  Westermarck's  theories;  his  Romantic 
Love  and  Personal  Beauty  (London,  1887) ;  Duboc,  Psychologie  der 
Liebe  (Hannover,  1874) ;  Mantegazza,  Physiologie  der  Liebe  (30th  ed., 
Berlin,  1897) ;  Klebs,  Verhdltniss  des  mann.  und  weibl.  Geschlechts  in 
der  Natur  (Jena,  1894) ;  Schroeder,  Das  Recht  in  der  geschlechtl.  Ord- 
nung  (Berlin,  1893);  Thomas,  "Relations  of  Sex  to  Primitive  Social 
Control,"  and  his  "Difference  in  the  Metabolism  of  the  Sexes,"  both  in 
Am.  Journal  of  Sociology,  III  (1898) ;  Sadler,  The  Law  of  Popidation 
(London,  1830) ;  Starkweather,  The  Law  of  Sex  (London,  1883) ; 
Hofacker  and  Notter,  Uber  die  Eigenschaften  ....  welche  sich  auf 
die  Naclikommen  vererben  (Tubingen,  1827) ;  Ploss,  Das  Weib  (Leip- 
zig, 1895) ;  also  his  Ueber  die  das  Geschlechtsverhdltniss  der  Kinder 
bedingenden  Ursachen  (Berlin,  1859);  Schenk,  Einfluss  auf  das 
Geschlechtsverhdltniss  (3d  ed.,  Magdeburg  and  Vienna,  1898) ;  the 
brilliant  monograph  of  Dusing,  Die  Regulierung  des  Geschlechtsver- 
hdltnisses  (Jena,  1884) ;  Huth,  Marriage  of  Near  Kin  (2d  ed.,  1887) ; 
Lewkowitsch,  "Die  Ehen  zwischen  Geschwisterkindern  and  ihre 
Folgen,"  in  ZFE.,  VIII;  and  Mitchell,  "Blood-Relationship  in  Mar- 
riage," in  Mem.  of  London  Anth.  Society,  1865,  II,  402  flf. 

Several  important  points  are  treated  in  Tylor's  Early  History  of 
Mankind  (New  York,  1878) ;  and  in  his  Method  of  Jnvestigating  Insti- 
tutions. See  also  Kovalevsky,  Tableau  des  origines  et  de  revolution 
de  lafamille  (Stockholm,  1890) ;  Swinderen,  De  Polygynia  (Groningae, 
1795) ;  and  for  a  curiosity,  read  Premontval,  La  monogamie  (1751).  In 
general,  the  literature  cited  in  Bibliographical  Note  II  has  been  used, 
and  so  need  not  here  be  described.] 

I.      THE    PROBLEM    OF    PROMISCUITY 

The  researches  of  several  recent  writers,  notably  those  of 
Starcke  and  Westermarck,  confirming  in  part  and  further 
developing  the  earlier  conclusions  of  Darwin  and  Spencer, 


Theory  op  the  Original  Pairing  91 

have  established  a  probability  that  marriage  or  pairing 
between  one  man  and  one  woman,  though  the  union  be  often 
transitory  and  the  rule  frequently  violated,  is  the  typical 
form  of  sexual  union  from  the  infancy  of  the  human  race. 
The  problem  is  not  yet  fully  worked  out ;  but  if  in  the  end 
the  theory  of  original  promiscuity  must  be  abandoned,  and 
the  pairing  or  monogamous  family  accepted  as  the  primitive 
social  unit,  it  is  not  because  of  the  spiritual  and  moral  supe- 
riority of  man,  as  compared  with  other  animals,  but  because 
sexual  communism  as  a  primitive  and  general  phase  of  life 
appears  to  be  inconsistent  with  the  biological,  economic,  and 
psychological  laws  which  have  determined  the  general  course 
of  organic  evolution.  Strongly  supported  and  highly  prob- 
able as  is  the  pairing  or  monogamic  theory,  it  must  be 
clearly  understood  in  the  outset  that  it  is  still  only  a  theory 
and  has  not  yet  reached  the  stage  of  demonstration.  It 
will  hardly  do,  however,  to  set  aside  the  researches  of  its 
adherents  as  being  superficial  and  devoid  of  real  scientific 
method ;  for  the  champions  of  the  opposite  doctrine  of  primi- 
tive communism  are  nothing  if  not  daring,  and  their  sweep- 
ing generalizations  often  rest  solely  on  comparatively  few 
"survivals"  of  alleged  conditions  which  are  absolutely  "pre- 
historic."' 

It  may  be  impossible  to  prove  that  there  ever  was  a  uni- 
form primitive  state.  "So  long  as  we  are  within  the  sphere 
of  experience,"  says  Starcke,  "we  cannot  begin  by  assuming 
that  there  was  at  any  time  only  a  single  human  community. 
Experience  begins  with  a  plurality  of  communities,  and  the 
single  community  of  which  we  are  in  search  must  be  found 
on  the  indeterminate  boundary  between  man  and  animals."^ 

1  Among  the  great  living  investigators  in  this  field  no  one,  perhaps,  has  sinned 
more  frequently  in  making  hazardous  generalizations  than  Kohlee,  who  is  particu- 
larly harsh  in  his  criticism  of  Westermarck,  Curr,  and  other  adversaries.  See,  for 
example,  his  Zur  Urgeschichte  der  Ehe,  2flE.,  150  S. 

'^Primitive  Family,  7,  8. 


92  Matrimonial  Institutions 

Indeed,  it  seems  certain  that  if  we  are  ever  to  understand 
the  character  of  the  earliest  forms  of  human  marriage  and 
the  human  family,  we  must  begin  by  studying  the  family 
and  marriage  as  they  exist  among  other  and  less  advanced 
members  of  the  animal  world.'  Biology,  declares  Letourneau, 
is  the  starting-point  of  sociology.^  In  this  view  Starcke  co- 
incides. "We  have  no  reason  to  regard  the  social  life  of 
man  as  a  recent  form.  Not  only  do  the  same  psychical 
forces  which  influence  gregarious  man  also  influence  the 
gregarious  animal ;  probability  also  leads  us  to  infer  that  the 
primitive  communities  of  mankind  are  derived  from  those  of 
animals.  Since  man  in  so  many  respects  only  goes  on  to 
develop  the  previous  achievements  of  animal  experience,  it 
may  be  supposed  that  he  made  use  of  the  social  experience 
of  animals  as  the  firm  foundation  of  his  higher  advance- 
ment."  Besides,  "there  are  human  communities  which  are 
far  less  firmly  established  than  those  of  animals ;"  and  "it 
may  even  be  asserted  that  the  social  faculty  is  positive  in 
animals  and  negative  in  man,"  for  man  is  "less  subservient 
to  instinct." ^  "  If  we  want  to  find  out  the  origin  of  marriage," 
says  Westermarck,  "we  have  to  strike  into  another  path,  the 
only  one  which  can  lead  to  the  truth,  but  a  path  which  is 
open  to  him  alone  who  regards  organic  nature  as  one  con- 
tinued chain,  the  last  and  most  perfect  link  of  which  is  man. 
For  we  can  no  more  stop  within  the  limits  of  our  own  species, 
when  trying  to  find  the  root  of  our  psychical  and  social 
life,  than  we  can  understand  the  physical  condition  of  the 
human  race  without  taking  into  consideration  that  of  the 
lower  animals."* 

1  See  Letoueneau,  U&volution  du  mariage,  chap,  ii,  on  "  Le  mariage  et  la 
famille  chez  les  animaux;"  and  his  Sociology,  327-30,  380-82. 

"^Vivolution  du  mariage,  chap.  i. 

'Staecke,  op.  cit.,  8,  9. 

*  Human  Marriage,  9.    See  also  ibid.,  chap,  iii,  on  the  "  Antiquity  of  Human 
Marriage." 


Theory  op  the  Original  Pairing  93 

Accordingly  three  principal  arguments  against  the  exist- 
ence at  any  time  of  a  general  state  of  promiscuity  have  been 
advanced : 

First  is  the  so-called  zoological  argument,  based  on  a 
comparison  of  the  sexual  habits  and  institutions  of  animals 
with  those  of  the  lowest  races  of  men.  In  the  outset  it  is 
important  to  observe  that  the  physical  differentiation  of  the 
sexes  is  itself  a  product  of  the  struggle  for  existence.  This 
important  fact  is  made  the  starting-point  of  the  argument  by 
which  Hellwald^  finds  the  elements  of  the  human  mother- 
group  and  of  mother-right  in  earlier  animal  experiences. 
Among  the  lowest  members  of  the  animal  kingdom  there  is 
no  individual  distinction  of  sex.  That  first  makes  its  appear- 
^  ance  when  the  "artistically  constructed  organism,  in  order 
to  sustain  itself  in  the  process  of  evolution,  is  called  upon  to 
perform  a  wider  series  of  functions."  Thus  "when  an  ani- 
mal is  forced  to  greater  exertion,  when  it  must  work  in  order 
to  exist,  when  unresistingly  it  can  no  longer  suffer  the 
stream  of  events  to  press  upon  it,  but  withstands  it  and 
seeks  in  it  to  follow  its  own  course,  then  the  separation  of 
the  sexes  appears,  and,  indeed,  as  a  division  of  labor  created 
by  nature  for  the  purpose  of  developing  species."  With 
further  evolution,  male  and  female  characteristics  become 
more  pronounced,  in  response  to  the  special  functions  which 
each  sex  is  called  upon  to  perform.  The  same  process  con- 
tinues in  the  case  of  man.  To  see  in  him  anything  other 
than  the  "  highest  and  foremost  representative  of  the  animal 
world,  one  must  be  drunk  with  metaphysical  nectar,  and 
nothing  is  better  fitted  than  comparative  physiology  to 
humble  one's  pride  in  this  regard."  For  man's  entire 
physical  organization  is  "homologous  to  that  of  the  higher 
species  of  animals."  Accordingly,  the  lower  a  group  of 
men  stands  on  the  ladder  of  culture,  the  less  marked  is  the 

1  Die  mensch.  Familie,  4  ff. 


94  Matrimonial  Institutions 

•'bodily  difPerentiation  of  the  sexes."  Among  various  back- 
ward peoples  there  is  relatively  slight  difference  in  outward 
appearance  between  the  men  and  the  women/  The  growth 
of  sexual  variation  in  physical  structure  keeps  pace  exactly 
with  progress  in  civilization,  f  This  progress  depends  mainly 
on  two  origfinal  forces.  Of  these  "without  doubt  the 
mightiest  is  hunger,"  the  need  of  nourishment.  For  every- 
where on  earth  the  "jQrst  thought  and  striving"  of  living 
beings  is  the  "stilling  of  hunger."  Next  to  the  struggle 
for  food,  the  sexual  and  pairing  impulse  is  the  most  potent 
factor  in  the  genesis  of  society.  )  The  former  influence,  it  is 
important  to  observe,  is  the  more  constant  and  the  more 
imperative.  The  latter  grows  and  becomes  more  acute  with 
increase  in  refinement  and  the  consequent  development  of 
the  nervous  system.^  It  follows  that  in  the  origin  of  social 
institutions  the  erotic  or  pairing  impulse,  however  impor- 
tant, is  a  less  cogent  genetic  force  than  the  economic  neces- 
sity of  a  food  supply. 

The  lives  of  the  lower  animals  reveal  a  great  variety  of 
sexual  relations.  The  lowest  form,  and  perhaps  the  most 
frequent,  is  that  of  unlimited  promiscuity.'  Among  the 
invertebrates  the  preservation  of  the  young  is  left  almost 
wholly  to  chance.  The  duties  of  the  parents  are  limited 
mainly  to  the  functions  of  reproduction.     "  In  the  lowest 

1  Among  the  aborigines  of  New  Britain,  according  to  Powell,  Unter  den  Kan- 
nibalen  von  Neubritannien,  123;  and  among  the  Lacondou  Indians  of  Central 
America,  according  to  Charnay,  Les  anciennes  villes  du  nouveau  monde,  399. 
"  Negro  women  of  unmixed  blood  seldom  have  voluptuous  figures,  and  in  anatomical 
structure  they  resemble  the  men  in  a  remarkable  way,  so  that  seen  from  a  distance 
they  are  scarcely  to  be  distinguished  from  them.  The  same  is  true  for  a  whole  series 
of  low  races."—  Hellwald,  op.  cit,  6. 

2  "  Bedenken  wir  die  vielen  Mittel,  die  gerade  die  Civilisation  hierzu  bietet,  so 
durfte  dem  befremdenden  Urteile  nicht  mehr  zu  widersprechen  sein,  dass  bei  wirk- 
lichen  NaturvOlkern  und  unter  normalen  sozialen  Verhaltnissen  der  erotische  Antrieb 
ein  beschrankterer  sei,  als  auf  hOheren  Stufen  der  Civilisation."— Lippert,  Geschichte 
der  Familie,  29,  30.  Among  the  highly  civilized  of  our  own  times  the  nervous  system 
is  very  greatly  developed,  and  therewith  the  capacity  for  sexual  pleasure  is  propor- 
tionately increased;  see  Hellwald,  op,  ctt,  11  fE.,  128,  and  the  literature  there  cited. 

^  Ibid.,  22. 


Theory  of  the  Original  Pairing  95 

classes  of  vertebrata,  parental  care  is  likewise  almost  unheard 
of."  It  "rarely  happens  that  both  parents  jointly  take  care 
of  their  progeny." '  But  the  chelonia,  or  tortoise  group,  are 
"known  to  live  in  pairs;"  and  here  we  reach,  among  ani- 
mals, the  first  trace  of  the  family,  properly  so  called.  "The 
chelonia  form,  with  regard  to  their  domestic  habits,  a  transi- 
tion to  the  birds,  as  they  do  also  from  a  zoological  and,  par- 
ticularly, from  an  embryological  point  of  view."  Who  that 
has  experienced  the  keen  delight  afforded  by  watching  the 
domestic  habits  of  birds,  from  the  building  of  the  nest  to 
the  teaching  of  the  young  to  make  the  first  wavering  trial 
of  its  wings,  cannot  bear  witness  to  the  high  development 
of  marriage  and  the  family  among  them?  ^The  great  work 
of  Brehm  supplies  abundant  evidence  of  their  human-like 
social  life.^  "Parental  affection,"  summarizes  Westermarck, 
"has  reached  a  very  high  degree  of  development,  not  only 
on  the  mother's  side,  but  also  on  the  father's.  Male  and 
female  help  each  other  to  build  the  nest,  the  former  gen- 
erally bringing  the  materials,  the  latter  doing  the  work.  In 
fulfilling  the  numberless  duties  of  the  breeding  season  both 
birds  take  a  share.  Incubation  rests  principally  with  the 
mother,  but  the  father,  as  a  rule,  helps  his  companion,  taking 
her  place  when  she  wants  to  leave  the  nest  for  a  moment,  or 
providing  her  with  food  and  protecting  her  from  every 
danger.  Finally,  when  the  duties  of  the  breeding  season 
are  over,  and  the  result  desired  is  obtained,  a  period  with 
new  duties  commences.  During  the  first  few  days  after 
hatching,  most  birds  rarely  leave  their  young  for  long,  and 
then  only  to  procure  food  for  themselves  and  their  family. 
In  cases  of  great  danger,  both  parents  bravely  defend  their 
offspring.     As  soon  as  the  first  period  of  helplessness  is  over, 

1  Westeemaeck,  op.  cit.,  9  ff. 

2Bkehm,  Tierleben:  Allgemeine  Kunde  des  Tierreichs  (10  vols.,  Leipzig  and 
Vienna,  1891),  Vols.  IV-VI  are  devoted  to  birds.  See  also  his  Bird-Life  (London, 
1874). 


96  Matbimonial  Institutions 

and  the  young  have  grown  somewhat,  they  are  carefully 
taught  to  shift  for  themselves;  and  it  is  only  when  they  are 
perfectly  capable  of  so  doing  that  they  leave  the  nest  and 
the  parents.'"  The  bird  family  is  usually  monogamic,  and 
the  marriage  is  lasting.  Birds  are  generally  faithful  to  the 
marriage  vow;  and  this  is  particularly  true  of  the  females.^ 
"With  the  exception  of  those  belonging  to  the  gallinaceous 
family,  when  pairing,"  they  do  so  "once  for  all  till  either 
one  or  the  other  dies.^  And  Dr.  Brehm  is  so  filled  with 
admiration  for  their  exemplary  family  life  that  he  enthusi- 
astically declares  that  'real  genuine  marriage  can  only  be 
found  among  the  birds.'"* 

With  the  lower  mammals  the  union  of  the  sexes  is  gen- 
erally of  short  duration,  often  only  for  a  single  birth,  though 
in  several  species  the  parents  remain  together  even  after 

1  Westbemaeck,  op.  cit.,  11;  cf.  Beehm,  op.  cit.,  IV,  19  ff.,  passim;  and  Herman 
MtJLLEE's  Am  Neste,  which  Brehm  has  used. 

2  Daewin,  Animals  and  Plants  under  Domestication,  II,  81,  speaks  of  pigeons  as 
being  "  true  to  their  wedding-vow."  On  polygyny  and  monogamy  among  animals 
see  idem.  Descent  of  Man,  216  ff.  "  Many  mammals  and  some  few  birds  are  polyg- 
amous, but  with  animals  belonging  to  the  lower  classes  I  have  found  no  evidence  of 
this  habit.  The  intellectual  powers  of  such  animals  are,  perhaps,  not  suflBcient  to 
lead  them  to  collect  and  guard  a  harem  of  females  "  (216,217).  Birds  sometimes 
lose  the  pairing  "instinct"  under  domestication  (220).  Regarding  the  "marital 
virtue  "  of  birds,  see  Hellwald,  op.  cit.,  30. 

3  "  Abweichend  von  anderen  Tieren  leben  die  meisten  VOgel  in  geschlossener 
Ehe  auf  Lebenszeit  und  nur  wenige  von  ihnen,  gleich  den  Saugetieren,  in  Viel weiberei 
oder  richtiger  Vielehigkeit,  da  eine  Vielweiberei  einzig  und  allein  bei  den  Straussen 
stattzufinden  scheint.  Das  Parchen,  welches  sich  einmal  vereinigte,  halt  wahrend 
des  ganzen  Lebens  treuinnig  zusammen,  und  nur  ausnahmsweise  geschiet  es,  dass 
einer  der  Gatten  die  Gesetze  einer  geschlossenen  Ehe  missachtet."  But  since  there 
are  more  males  than  females,  the  husband  often  has  to  fight  for  the  retention  of  his 
wife,  though  in  exceptional  cases  she  aids  him  in  repelling  the  aggressor.  The  wife 
is  sometimes  too  ready  to  follow  the  victor,  and  in  some  cases  the  widow  is  very 
easily  consoled.  "  Vugel,  deren  Mannchen  getOtet  wurde,  waren  schon  eine  halbe 
Stunde  spater  wieder  verehelicht ;  der  zweite  Gespons  wurde  ebenf  alls  ein  Opfer 
seiner  Feinde :  und  dieselben  Weibchen  nahmen  ohne  Bedenken  flugs  einen  dritten 
Gatten  an.  Die  Mannchen  legen  gewOhnlich  viel  tiefere  Trauer  um  den  Verlust  ihrer 
Gattin  an  den  Tag,  wahrscheinlich  aber  nur  well  es  ihnen  ungleich  schwerer  wird 
als  den  Weibchen,  wieder  einen  Ehegenossen  zu  erwerben." —  Beehm,  op.  cit.,  IV, 
20,  21.  For  very  interesting  examples  of  marriage  and  the  family  among  birds,  see 
Hellwald,  op.  cit.,  26  ff.,  38 ;  and  compare  Wundt,  Menschen  und  Thierseele,  448  ff. ; 
and  EspiNAS,  Des  sociUis  animates,  417  ff.,  439. 

4 Beehm,  Bird-Life,  324;  Westeemaeck,  op.  cit.,  11.  482.  502. 


Theory  of  the  Original  Pairing  97 

the  arrival  of  the  young.  But  among  the  higher  members 
examples  of  monogamic  marriage  are  not  infrequent,  such 
being  the  case  with  animals  of  prey.'  As  a  rule,  the  quad- 
rumana  live  in  pairs.  Gorillas,  however,  are  said  sometimes 
to  be  polygynous.  "According  to  Dr.  Savage,  they  live  in 
bands,  and  all  his  informants  agree  in  the  assertion  that  but 
one  adult  male  is  seen  in  every  band."  ^  But  monogamy  is 
perhaps  most  common.  M.  du  Chaillu  declares  that  he 
found  "almost  always  one  male  with  one  female,  though 
sometimes  the  old  male  wanders  companionless."  ^  The 
orang-utan  and  the  chimpanzee,  like  the  gorilla,  also  live  in 
families.*  Of  a  truth,  promiscuity  is  far  from  universal  in 
the  pre-human  stage. 

Yet  it  would  be  easy  to  overestimate  the  value  of  the 
argument  based  upon  the  sexual  relations  of  the  lower 
animals.  But  it  will  not  do  with  Kohler  and  Lippert  to 
set  it  aside  as  entirely  irrelevant.^  Upon  the  precedents 
afforded  by  "anthropomorphic"  species  in  particular,  as 
Hellwald  justly  insists,  no  "slight  weight  should  be  placed;" 
for  these  are  "not  merely  the  highest  organized  animals, 
but  they  must  also  be  regarded  as  the  nearest  animal  rela- 
tives of  man."  ^  Indeed,  the  transition  from  the  family  as 
it  exists  among  the  quadrumana  to  that  of  the  least- 
developed  races  of  man  is  not  abrupt,  although  the  lowest 
examples  of  mankind  yet  observed  are  advanced  beyond  the 
supposed  primitive  human  stage.     The  broad  characteristics 

1  Hellwald,  op.  cit.,  25,  26. 

J  Description  of  Troglodytes  Gorilla,  9  ff. ;  Westeemaeck,  op.  cit.,  13. 

3  Du  Chaillu,  Explorations  and  Adventures  in  Equatorial  Africa,  349 ;  Westee- 
maeck, op.  cit.,  14.    But  see  Hellwald,  op.  cit.,  23. 

*Cf.  Daewin,  Descent  of  Man,  108,  217  ff.,  590,  591,  who  is  cautious  in  his  state- 
ment as  to  the  rule  among  the  quadrumana.  Kautsky,  "Entstehung  der  Ehe  und 
Familie,"  Kosmos,  XII,  198  ff.,  gives  some  interesting  illustrations  of  marriage  among 
animals;  and  see  Espinas,  op.  cit.,  444 ff.;  Atkinson,  Primal  Law,  219-25. 

5  Kohlee,  Zur  Urgeschichte  der  Ehe,  6,  7 ;  Lippeet,  Kulturgeschichte,  I,  72,  73. 

6  Hellwald,  op.  cit.,  26,  27. 


Matrimonial  Institutions 


of  the  one  are  the  characteristics  of  the  other.  The  "rela- 
tions of  the  sexes  are,  as  a  rule,  of  a  more  or  less  durable 
character."  There  is  conjugal  affection.  The  immediate 
care  of  the  children  belongs  to  the  mother.  "Among 
mammals  as  well  as  birds,"  declares  Espinas,  "maternal 
love  is  the  corner-stone  of  the  family."  '  The  father  is  the 
protector  and  provider,  although  paternal  love  is  more 
slowly  developed.  Like  the  male  among  the  lower  animals, 
savage  or  barbarous  man  may  be  "rather  indifferent  to  the 
welfare  of  his  wife  and  children,  ....  but  the  simplest 
paternal  duties  are,  nevertheless,  universally  recognized.  If 
he  does  nothing  else,  the  father  builds  the  habitation,  and 
employs  himself  in  the  chase  and  in  war."  ^ 

But  the  argument  for  the  pre-human  origin  of  the  ele- 
ments of  marriage  and  the  family  does  not  rest  merely  upon 
precedents  of  sexual  habits.  It  is  based  rather  upon  the 
entire  experience  of  animals  in  the  hard  struggle  for  exist- 
ence. That  struggle,  as  Hellwald  suggests,  forced  upon 
them  primarily  the  problem  of  food-supply,  the  need  of  a 
sort  of  economic  co-operation,  more  lasting  in  its  results 
than  the  pairing  instinct.  It  is  the  entire  social,  mental, 
and  moral  product  of  animal  experience,  of  living  together, 
so  well  described  among  others  by  Espinas,  Schaffle,  Groos, 
and  Wundt,  which  man  in  some  measure  inherited  as  a  rich 
legacy  from  his  humbler  predecessor/  Accordingly  Wester- 
marck  believes  that  marriage  was  probably  "transmitted  to 

1  Op.  cit,  444;  cf.  Hellwald,  op.  cit.,  40-42. 

2  Westeemaeck,  op.  cit.,  14-19.  Hildebeand,  Ueber  das  Problem  einer  allge- 
meinen  Entwicklungsgeschichte,  23  ff.,  maintains  the  existence  of  monogamy  in  what 
he  holds  to  be  the  first  culture-stage,  that  of  the  chase.  A  similar  result  is  reached 
by  MucKE,  Horde  und  Familie,  59  S.,  passim  :  Kautsky,  op.  cit.,  190  fit. ;  Geosse,  Die 
Fornien  der  Familie,  as  above  summarized. 

3  For  the  social  systems  among  animals,  even  insects,  see  SchIjfle,  Bauund 
Leben  des  socialen  K&rpers,  20  ff. ;  Wundt,  Menschen  und  Tierseele,  369  ff.,  447  ff.; 
Geoos,  Spiele  der  Thieve,  147  ff.,  162  ff.,  230  ff. ;  and  especially  Espinas,  op.  cit.,  207  ff., 
274  ff.,  458  ff.,  543  ff.  Compare  Houzeau,  ^tude  sur  lesfacult^s  mentales  des  animaux ; 
and  the  other  authors  on  this  subject  cited  in  Bibliographical  Note  III. 


I 


Theoby  op  the  Original  Pairing  99 

man  from  some  ape-like  ancestor,  and  that  there  never  was 
a  time  when  it  did  not  occur  in  the  human  race." '  With 
Starcke,  and  in  harmony  with  the  view  of  Hellwald  already 
quoted,  he  holds  that  marriage  and  the  family  cannot  rest 
upon  the  sexual  impulse  alone.  This  is  too  transitory. 
Among  animals  it  is  obvious  that  "it  cannot  be  the  sexual 
instinct  that  keeps  male  and  female  together  for  months 
and  years,"  for  the  "generative  power  is  restricted  to  a 
certain  season;"  and  it  seems  highly  probable  that  among 
men  a  pairing  season  prevailed  in  ancient  times.  Thus  the 
"wild  Indians  of  California,  belonging  to  the  lowest  races 
on  earth,"  are  said  to  "have  their  rutting  seasons  as  regu- 
larly as  have  the  deer,  the  elk,  the  antelope,  or  any  other 
animals."  ^  According  to  Powers,  the  California  Kabinapek 
"are  extremely  sensual.  In  the  spring  when  the  wild  clover 
is  lush  and  full  of  blossoms  and  they  are  eating  it  to  a  satiety 
after  the  famine  of  winter,  they  become  amorous.  This  sea- 
son, therefore,  is  a  literal  Saint  Valentine's  Day  with  them, 
as  with  the  natural  beasts  and  birds  of  the  forest."  ^  The 
Tasmanians,  the  Australian  Watch-an-dies,  and  various  other 
peoples  appear  to  show  evidences  of  the  same  habit.*  Vignoli 
reaches  a  similar  conclusion.  "The  family  union  in  which 
man  originally  finds  himself  is  not  an  essentially  human  but 
likewise  an  animal  fact,  since  that  mode  of  common  social 
life  is  found  with  the  greater  part  of  animals  and  always 

ipp.  cit.,  20;  cf.  Keane,  Ethnology,  9,  taking  the  same  view. 

S  ScHOOLCKAFT,  Indian  Tribes,  IV,  224. 

3  Powers,  Tribes  of  California,  206.  Similar  evidence  is  furnished  by  Corbusier : 
"  For  two  years  in  succession  I  observed  that  in  August  and  September  the  women 
solicited  the  attentions  of  the  men,  and  an  unusual  number  of  couples  were  seen 
with  their  heads  hidden  in  a  blanket  caressing  each  other.  The  majority  of  the 
children  were  born  in  the  spring." — "  The  Apache- Yumas  and  Apache-Mojaves,"  Am. 
Antiquarian,  VIII,  330. 

*  Westeemaeck,  op.  cit.,  20,  24-38,  cites  the  literature.  On  the  pairing  seasons 
among  men  and  animals,  see  also  Hellwald,  op.  cit.,  127  ff. ;  Kulischee,  in  ZFE., 
VIII,  149  ff. ;  and  Mccke,  op.  cit.,  67  ff.  The  pairing  season  appears  to  be  the  result 
of  natural  selection,  a  device  of  nature  to  make  sure  that  the  young  shall  be  born  at 
a  time  most  favorable  to  their  sustenance  and  survival. 


100  Matrimonial  Institutions 


among  the  higher.  It  is  the  necessity  of  rearing  the  young 
which  unites  the  parents  and  gives  them  a  common  life  for 
a  shorter  or  longer  period;  indeed  in  some  species  this 
marriage  of  love  and  care  continues  throughout  their  whole 
existence.  (  Hence  the  fact  of  family  sociality  is  not  an 
exclusive  product  of  humanity,  but  of  the  universal  laws  of 
the  whole  animal  life  upon  the  earth.  Let  it  not  be  asserted 
that  in  man  affection  between  the  sexes  and  toward  their 
offspring  ....  is  more  active,  more  intense,  and  more  last- 
ing ;  for  it  manifests  itself  with  equal  strength  and  sometime 
with  equal  duration  between  animals  and  toward  their  young^ 
Thus  man  loves,  cohabits,  and  lives  socially  in  a  primitive 
family  community  only  because  he  is  an  animal  and  more- 
over an  animal  higher  in  the  organic  series.  So  the  fact  of 
the  family  is  consummated  according  to  the  necessity  of 
cosmic  laws  governing  a  great  part  of  the  reproductive  and 
social  activity  of  the  animal  kingdom."  ^ 

According  to  Starcke,  "we  are  in  some  respects  disposed 
to  underestimate  the  great  influence  which  sexual  matters 
exert  on  all  the  concerns  of  social  life,  and  the  attempt  is 
sometimes  made  to  sever  it  from  moral  life,  as  a  matter  of 
which  we  are  constrained  to  admit  the  practical  existence, 
although,  from  the  ideal  point  of  view,  it  ought  not  to  be. 
On  the  other  hand,  its  influence  on  primitive  communities 
has  been  greatly  overrated."  The  sexual  instinct,  however 
powerful,  is  "devoid  of  the  conditions  which  form  the  basis 
of  the  leading  tendencies  in  which  man's  struggle  for  exist- 
ence must  be  fought  out."  Hence  primitive  marriage  does 
not  rest  upon  the  tender  sentiment  which  we  call  love,^  but 
"as  hard  and  dry  as  private  life  itself,"  it  has  its,"origin  in 
the  most  concrete  and  prosaic  requirements."    vThe  "com- 

iViGNOLl,  Ueber  das  Fundamentalgesetz  des  IntelUgenz  im.  Thierreiche:  trans- 
lated from  Hellwald,  Die  mensch.  Familie,  42. 

2  Compare  the  interesting  chapter  of  Hellwald,  "  Kuss  und  Liebe,"  op.  cit., 
97-120. 


Theory  of  the  Original  Pairing  101 

mon  household,"  he  continues,  "in  which  each  had  a  given 
work  to  do,  and  the  common  interest  of  obtaining  and  rear- 
ing children  were  the  foundations  upon  which  marriage  was 
originally  built." '  ^  Therefore,  according  to  this  view,  mar- 
riage appears  to  be  a  kind  of  contractual  relation  from  the 
beginning.^  The  conclusions  of  Westermarck  on  this  point 
are  in  substantial  harmony  with  those  of  Starcke:  "The  pro- 
longed union  of  the  sexes  is,  in  some  way  or  other,  connected 

with  parental  duties The  tie  which  joins  male  and 

female  is  an  instinct  developed  through  the  powerful  influ- 
ence of  natural  selection."  This  instinct  as  well  as  parental 
affection  are  "thus  useful  mental  dispositions  which,  in  all 
probability,  have  been  acquired  through  the  survival  of  the 
fittest."  So  he  concludes  that  "it  is  for  the  benefit  of  the 
young  that  male  and  female  continue  to  live  together.  Mar- 
riage is  therefore  rooted  in  family,  rather  than  family  in 
marriage."  ^  Hence  it  is  that  among  many  peoples  "  true 
conjugal  life  does  not  begin  before  a  child  is  born;"  and 
there  are  other  races  who  "consider  that  the  birth  of  a  child 
out  of  wedlock  makes  it  obligatory  for  the  parents  to  marry."* 

1  Primitive  Family,  241,  242, 268,  and  the  whole  of  chap,  vii,  of  the  second  division 
of  the  work,  in  which  he  gives  the  results  of  the  researches  comprised  in  the  preced- 
ing chapters.  Cf.  Daegun,  Mutterrecht  und  Vaterrecht,  17, 18,  who  favors  Starcke's 
view  as  against  Hellwald,  op.  cit.,  457;  also  Lippeet,  Geschichte  der  Familie,  118, 
who  takes  a  similar  position. 

2  "  The  family  is  therefore  distinguished  from  the  family  group  and  the  clan  as 
a  group  of  kinsfolk  established  by  contract,  and  only  in  a  subsidiary  sense  by  the  tie 
of  blood  between  parents  and  children."— Op.  cit.,  13.  With  Starcke's  view  compare 
that  of  Posada,  who  uses  the  suggestive  word  symbiose  (convivencia)  to  express  the 
totality  of  influences  concerned  in  the  origin  of  society.  He  says:  "Ensomme, 
d'aprfes  tout  ce  qui  vient  d'etre  dit,  la  soci6t6  humaine  ne  pent  pas  6tre  consid6r6e 
comme  ayant  eu  la  familie  pour  origine.  A  la  force  instinctive  du  sang,  au  fait 
n6cessaire  et  primitif  de  I'union  sexuelle,  il  faut  ajouter  et  combiner  la  symbiose, 
qui  tend  h  devenir  territoriale,  et  r6sulte  du  besoin  fondamental  de  la  conservation: 
elle  implique  la  coop§ration  universelle  et  la  vie  de  relation,  d6termin6e  par  le 
plaisir,  par  la  sympathie,  par  la  n6cessit6  de  faire  face  aux  exigences  d'autres 
hommes;  elle  implique  aussi  la  cooperation  universelle,  non  plus  de  mari  h  femme, 
ni  de  p6re  &  fils,  mais  d'homme  h  homme." — Theories  m,odernes,  99, 100, 96, 81  £F.,  passim. 

sWestekmaeck,  op.  ctt.,  20-22. 

*Ibid.,  22  £f.,  379,  535.  On  these  customs,  often  taken  as  evidences  of  former 
promiscuity,  compare  Lippeet,  Geschichte  der  Familie,  6,  7;  and  the  examples  in 
ZFi?.,V,  353;  XI,  135, 136. 


102  Matrimonial  Institutions 


( As  a  result  of  the  first  argument,  then,  marriage  appears 
as  a  fundamental  institution,  whose  beginnings  are  anterior 
to  the  dawn  of  human  history.}  But  there  is  need  of  a  new 
definition,  one  broad  enough  to  satisfy  the  demands  of 
science.  For  most  existing  definitions  are  of  a  "merely 
juridical  or  ethical  nature,  comprehending  either  what  is 
required  to  make  the  union  legal,  or  what,  in  the  eye  of  an 
idealist,  the  union  ought  to  be."  Hence  Westermarck 
defines  marriage,  from  a  scientific  point  of  view,  as  a  "more 
or  less  durable  connection  between  male  and  female,  lasting 
beyond  the  mere  act  of  propagation  till  after  the  birth  of 
offspring;"  and  Starcke,  in  like  spirit,  declares  that  mar- 
riage in  the  widest  sense  is  "only  a  connection  between  man 
and  woman  which  is  of  more  than  momentary  duration,  and 
as  long  as  it  endures  they  seek  for  subsistence  in  common."^ 
The  second  or  physiological  argument  may  be  very  briefly 
stated.  It  rests  upon  the  evidence,  referred  to  by  Sir  Henry 
Maine,  that  promiscuous  intercourse  between  the  sexes  "tends 
nowadays  to  a  pathological  condition  very  unfavorable  to 
fecundity;  and  infecundity,  amid  perpetually  belligerent 
savages,  implies  weakness  and  ultimate  destruction."^  Thus 
Dr.  Carpenter,  "who  visited  the  West  Indies  before  the 
abolition  of  slavery,  well  remembers  the  efforts  of  the 
planters  to  form  the  negroes  into  families,  as  the  promiscuity 
into  which  they  were  liable  to  fall  produced  infertility,  and 

1  Westekmaeck,  op.  cit,  19,  20;  Staecke,  op.  cit.,  13.  Feiedeichs,  "Familien- 
stufen  und  Eheformen,"  ZVR.,  X,  253-56,  accepts  Starcke's  conception  of  marriage, 
but  finds  his  definition  inadequate.  He  offers  the  following:  " Eine  von  der  Rechts- 
ordaung  anerkannte  und  privilegirte  Vereinigung  geschlechtsdifferenter  Personen, 
entweder  zur  Fuhrungeines  gemeinsamen  Hausstandes  und  zum  Geschlechtsverkehr, 
Oder  zum  ausschliesslichen  Geschlechtsverkehr."  Cf.  Heuslee,  Institutionen,  II, 
271-76,  on  the  distinction  between  Familie  and  Sippe.  "  Die  Familie  des  Rechtes," 
he  says,  "ist  nicht  ein  Verband  von  Blutsverwandten  sondern  eine  Gemeinschaft  der 
Hausgenossen ; "  but  the  Sippe  (gens)  is  based  on  blood-relationship  (271).  He 
combats  the  view  of  Rosin,  Der  Begriff  der  Schwertmagen,  §  5.  Hellwald,  as  already 
seen,  prefers  the  term  "mother-group"  for  the  so-called  primitive  family;  and  does 
not  find  marriage  proper  until  the  stage  of  property  and  full  "mother-right"  is 
reached ;  see  chap.  ii. 

i Early  Law  and  Custom,  204,  205;  cf.  also  Westeemaeck,  op.  cit.,  115-17. 


Theory  of  the  Original  Pairing  103 

fertility  had  become  important  to  the  slave-owner  through 
the  prohibition  of  the  slave-trade.'"  Again  "it  is  a  well- 
known  fact  that  prostitutes  very  seldom  have  children,  while, 
according  to  Dr.  Roubaud,  those  of  them  who  marry  young 
easily  become  mothers."  ^  Furthermore,  as  Westermarck 
urges,  "in  a  community  where  all  the  women  equally 
belonged  to  all  the  men,  the  younger  and  prettier  ones 
would  of  course  be  most  sought  after,  and  take  up  a  position 
somewhat  akin  to  that  of  the  prostitutes  of  modern  society."^ 
Nor  is  the  objection,  that  "  the  practice  of  polyandry  prevails 
among  several  peoples  without  any  evil  results  as  regards 
fecundity  being  heard  of,"  insuperable.  For  "polyandry 
scarcely  ever  implies  continued  promiscuous  intercourse  of 
many  men  with  one  woman;"  and  where  it  exists  the  rela- 
tions of  the  woman  with  her  husbands  is  often  so  regulated 
as  to  make  the  union  practically  monogamous.*  In  this  con- 
nection also  should  be  considered  the  infertility  and  other 
evils  resulting  from  the  intermarriage  of  near  kindred.^  For 
in  a  state  of  promiscuity  such  unions  must  have  been  very 
frequent;  and  at  one  stage  of  social  development,  if  the 
theory  of  Morgan  were  to  be  accepted,  they  must  have  con- 
stituted the  general  rule. 

According  to  Westermarck,  the  strongest  objection  to 
ancient  promiscuity  "is  derived  from  the  psychical  nature 
of  man  and  other  animals."**     The  third  or  psychological 

1  Early  Law  and  Custom,  204,  205,  note. 

2  Westermarck,  op.cit.,  115;  Mantegazza,  Die  Hygiene  der  Liebe,  405;  c/. 
Maine,  op.  cit.,  204. 

3  Op.  cit,  115. 

<  Ibid.,  115-17.  Thus  in  Tibet  but  one  of  the  husbands  was  usually  at  home ;  and 
among  the  Todas  betrothals  are  made  with  the  condition  that  each  of  the  husbands 
should  live  with  the  wife  a  month  by  turns:  ibid.,  116. 

5  See  the  elaborate  investigation  of  Westermarck,  op.  cit.,  chaps,  xiv,  xv, 
especially  334  ff. 

^Ibid.,  117-33,  495,  551.  With  this  passage  should  be  read  his  extremely  interest- 
ing chapters  on  the  "  Courtship  of  Man,"  the  "  Means  of  Attraction,"  "  Liberty  of 
Choice,"  "Sexual  Selection  among  Animals,"  " Sexual  Selection  of  Man;  Typical 
Beauty,"  and  the  "  Law  of  Similarity." 


104  Matrimonial  Institutions 


argument  therefore  alleges  the  universal  prevalence  of  sex- 
ual jealousy  among  the  races  of  men.'  Darwin  declares  that 
this  passion  is  found  among  all  male  quadrupeds  with  which 
he  is  acquainted  ;  and  comes  to  the  conclusion,  therefore, 
that  "looking  far  enough  back  in  the  stream  of  time,  and 
judging  from  the  social  habits  of  man  as  he  now  exists,  the 
most  probable  view  is  that  he  aboriginally  lived  in  small 
communities,  each  with  a  single  wife,  or  if  powerful  with 
several,  whom  he  jealously  guarded  against  all  other  men."' 
That  jealousy  is  unknown  among  "almost  all  uncivilized 
peoples"  is,  indeed,  asserted  by  many  adherents  of  the  horde 
theory.^  But  a  mass  of  evidence  relating  to  savage  and  bar- 
barous races  in  all  parts  of  the  world  shows  that  such  asser- 
tions are  without  foundation.  In  many  tribes  the  suspected 
wife  is  exposed  to  the  vengeful  fury  of  the  jealous  husband. 
For  example,  among  the  California  Indians,  according  to 
Powers,  "if  a  married  woman  is  seen  even  walking  in  the 
forest  with  another  man  than  her  husband  she  is  chastised 
by  him;"  and  "a  repetition  of  the  offense  is  generally  pun- 
ished with  speedy  death."*  So  "among  the  Creek  'it  was 
formerly  reckoned  adultery,  if  a  man  took  a  pitcher  of  water 
off  a  married  woman's  head  and  drank  of  it.' "  ^  Women,  we  are 
told,  are  held  in  little  esteem  among  the  Innuit  on  the  coast 
of  Labrador;  yet  "the  men  are  very  jealous,"  and  death  is 
often  the  penalty  for  adultery  on  the  part  of  either  spouse." 

iFlNCK,  Primitive  Love,  87  ff.,  criticises  Westermarck's  view,  presenting  a  mass 
of  facts  to  prove  the  absence  of  true  jealousy  among  levy  races. 

2  Descent  of  Man,  591 ;  cf.  Westeemaeck,  117;  and  Kautskt,  194  ff.  On  jealousy 
among  animals,  see  Hellwald,  Die  mensch.  Familie,  23,  37. 

3  Le  Bon,  Vhomme  et  les  sociit6s,  II,  293;  Westeemaeck,  op.  cit.,  117 ;  cf.  Gibaud- 
Teulon,  Origines  du  mariage,  71. 

*  Tribes  of  California,  412. 

sAdaie,  History  of  the  American  Indians,  143;  Westeemaeck,  op.  cit.,  119. 
Cf.  Klemm,  Kulturgeschichte,  II,  80,  who  finds  evidence  in  both  Americas  of  male 
jealousy  among  the  natives. 

6  "Although  the  men  are  very  jealous  of  the  favors  of  their  wives,  and  inconti- 
nence on  the  part  of  the  latter  is  certain  to  be  more  or  less  severely  punished,  the 
male  offender,  if  notoriously  persistent  in  his  efforts  to  obtain  forbidden  favors,  is 


/» 


Theory  op  the  Original  Pairing  105 

Magalhaes,  who  visited  "more  than  a  hundred  villages" 
among  "thirty  tribes"  of  Brazilian  natives,  some  of  them 
"already  half  civilized  and  others  still  entirely  free  from 
any  participation  in  our  institutions,  ideas,  and  pre-conceived 
notions,"  records  as  a  result  of  his  observations  that  "there 
exists  in  the  Indian  family  all  grades  from  institutions  strict 
to  a  degree  exceeding  anything  history  tells  us  abouf  down 

to  the  community  of  women Thus   I    know  tribes 

where  there  is  no  marriage,  and  I  know  others  in  which  a 
woman  committing  adultery  is  punished  by  being  burned."' 
Moreover,  he  emphatically  warns  us  that  he  is  speaking  here 
of  the  "uncatechised"  native,  not  yet  demoralized  by  mis- 
sionary influence.^  According  to  Dobrizhoffer,  the  Abipones 
of  Paraguay  are  conspicuous  for  "conjugal  fidelity;"  and 
they  are  very  jealous,  taking  swift  vengeance  when  infidelity  / 
is  suspected.^  Souza,  who  "lived  in  Brazil,  in  what  is  now 
the  state  of  Bahia,  from  1570  to  1587,"*  says  that  "there 
are  always  jealousies  among"  the  wives  of  the  polygamous 

usually  killed  by  the  injured  lover  or  husband."  Separations  are  often  caused  by 
jealousy. — Tukner,  "Ethnology  of  the  Ungava  District,"  XI.  Rep.  Bureau  of  Eth., 
178,  188,  189.  Cf.  Keausb,  Die  Tlinkit  Indianer,  221,  who  says  the  "betrayer  of  a 
woman,  if  he  escapes  the  dagger  of  the  offended  husband,  must  pay  for  his  offense 
with  presents.  If,  however,  he  is  a  relative,  he  takes  the  position  of  a  subordinate 
husband  (Nebenmann)  and  must  help  contribute  to  the  support  of  the  woman." 

1  Jose  Vieiea  de  Magalhaes,  "Familia  e  religiao  Selvagem,"  in  his  "Ensais 
de  Anthropologia,  Regiao  e  Ra^as  Selvagens,"  published  in  Revista  Trimensal  do 
Instituto  .  ...  do  Brasil,  XXXVI,  108  If.  The  passages  quoted  here  and  else- 
where from  Magalhaes  are  given  in  the  translation  made  for  the  author  by  Professor 
J.  C.  Branner.  The  reports  of  Martius,  Ethnographic,  1, 112, 11.5,  116, 119, 120;  idem, 
Rechtszustande,  59,  63,  64,  66-68,  seem  to  confirm  that  of  Magalhaes. 

2  "  I  refer,"  he  says,  "  to  the  uncatechised  Indian,  for  the  catechised  one  is,  as  a 
rule,  a  degraded  being.  Whether  the  system  of  catechising  is  bad,  or  whether  in  the 
efforts  directed  especially  toward  making  a  religious  man,  the  development  of  the 
eminently  social  ideas  of  free  labor  is  forgotten,  or  whether  it  is  something  else,  the 
fact  is  this:  the  catechised  Indian  is  a  degraded  man,  without  original  customs, 
indifferent  to  everything  and  consequently  to  his  wife  and  almost  to  his  family." 

3  "  Of  the  Weddings  and  Marriages  of  the  Abipones,"  in  his  Account  of  the  Abi- 
pones, II,  213.  Dobrizhoffer  was  eight  years  among  this  people  during  his  stay  in 
South  America,  1749-67. 

*I  am  indebted  to  Professor  J.  C.  Branner  for  a  translation  of  the  passages  hero 
and  elsewhere  quoted  from  Souza  and  Anchieta,  as  also  for  the  dates. 


106  Matrimonial  Institutions 


TupinambAs,  especially  on  the  part  of  the  first  wife,  because 
usually  she  is  "older  than  the  others  and  less  gentle." '  On 
the  other  hand,  the  Jesuit  Anchieta,  who  was  in  the  same 
/  country  "from  1553  until  his  death  in  1597,"  declares  that 
women  frequently  abandon  their  consorts  to  take  other  men 
"without  any  feeling  upon  the  part  of  the  husbands;  and  I 
never  saw  and  never  heard  of  any  Indian  killing  any  of  his 
wives  on  account  of  any  feeling  about  adultery;"  but  his 
narrative  reveals  unmistakable  evidence  of  the  existence  of 
sexual  jealousies.^ 

In  fact,  among  primitive  peoples,  as  suggested  by  the 
preceding  examples,  death  or  other  severe  punishment  is 
often  the  penalty  for  adultery.  It  is  so  in  Polynesia, 
although  the  fault  of  the  man  is  usually  "condoned;"^  as 
also  in  Micronesia,  where  the  husband  does  not  escape  so 
easily.*  Extraordinary  precautions  are  sometimes  taken  to 
prevent  marriage  with  an  impure  bride.  Frequently  the 
husband  requires  that  the  "woman  he  chooses  for  his  wife 
shall  belong  to  him,  not  during  his  life-time  only,  but  after 
his  death."    Hence  the  widespread  practice  of  sacrificing  the 

1  SouzA,  "  chap,  clii,  which  treats  of  the  manner  of  marriages  of  the  Tupinam- 
bas,"  in  his  "Tratado  descriptivo  do  Brazil  em  1587,"  Revista  Inst.  Hist.,  XIV,  311  ff. 

2  Josfi  d'Anchteta,  "  Informafao  dos  Casamentos  dos  Indies  do  Brazil,"  Revista 
Trimensal  de  Hist,  e  Geog.,  VIII,  254-62.  "At  most,"  he  continues,  "  they  beat  the  one 
guilty  of  adultery  if  they  can,  and  he  bears  it  patiently,  knowing  what  he  has  done, 
except  in  case  he  is  some  great  chief,  and  the  woman  has  no  father  or  strong  brothers 
of  whom  he  is  afraid."  Then  the  author  relates  how  a  "  great  chief,"  Ambirem, 
cruelly  put  a  wife  to  death  for  adultery;  but  this  act  and  others  of  the  same  sort  he 
ascribes  to  the  influence  of  the  French,  whom  the  good  priest  evidently  does  not  like. 

SAvEEY,  "Races  of  the  Indo-Pacific  Oceans,"  Am.  Antiquarian,  YI,  366.  The 
death  penalty  also  appears  in  New  Zealand :  Rusden,  I,  21. 

*Waitz,  Anthropologie,  V,  106,  107.  "When  the  wife  has  broken  the  marriage 
vow,  the  husband  may  put  her  away,  returning  her  property;  but  when  the  man  is 
guilty  of  this  crime,  or  has  even  made  himself  suspected  of  it,  his  fate  is  worse ;  for 
then  all  the  women  of  the  neighborhood  troop  together  and  fall  upon  the  offender 
with  his  possessions,  who  is  lucky  if  he  gets  off  with  a  whole  skin.  His  landed 
property,  his  house,  and  everything  he  has  are  completely  destroyed.  If  the  husband 
does  not  bear  himself  humbly  or  friendly  enough  towards  his  wife,  or  if  otherwise 
she  is  no  longer  pleased  with  him,  she  abandons  him  and  goes  to  her  parents,  who 
then  undertake  the  same  work  of  destruction.  Therefore  many  men  are  not  willing 
to  marry,  and  they  live  with  paid  women." 


The6ry  of  the  Original  Pairing  107 

wife  at  the  death  of  the  husband ;  and  the  frequent  restraint 
upon  the  remarriage  of  widows  is  ascribed  to  the  same  cause.' 

As  a  final  result  of  his  minute  examination,  Westermarck 
concludes  that  there  is  "  not  a  shred  of  genuine  evidence  for 
the  notion  that  promiscuity  ever  formed  a  general  stage  in 
the  social  history  of  mankind."  The  hypothesis,  he  declares, 
is  "essentially  unscientific."  How,  then,  it  may  be  asked, 
can  the  series  of  phenomena  adduced  by  McLennan  and 
others  to  support  that  hypothesis  be  otherwise  explained? 

In  the  first  place,  it  is  believed,  the  direct  evidence  as  to 
the  existence  of  races  living  promiscuously  in  ancient  and 
modern  times  will  not  stand  the  test  of  criticism.^  Often 
the  statements  of  writers  and  travelers  prove  on  examination 
to  be  erroneous.  Thus,  for  instance,  Sir  Edward  Belcher's 
assertion,  that  among  the  Andaman  Islanders  "the  custom 
is  for  the  man  and  woman  to  remain  together  until  the  child 
is  weaned,  when  they  separate,  and  each  seeks  a  new 
partner,"  ^  has  been  "  disproved  by  Mr.  Man,  who,  after  a 
very  careful  investigation  of  this  people,  says  not  only  that 
they  are  strictly  monogamous,  but  that  divorce  is  unknown, 
and  conjugal  fidelity  till  death  not  the  exception  but  the  rule 
amonof  them."*/  Sometimes  the  "facts  adduced  are  not 
really  instances  of  promiscuity."  This  appears  to  be  true, 
as  already  seen,  of  the  alleged  Australian  group-marriages. 
So  also  the  "communism"  practiced  among  the  Cahyap6s, 

1  For  examples  of  all  these  customs  read  Westermarck,  op.  cit,  124  ff.  On  the 
sacrifice  of  widows  in  India  and  elsewhere,  explained  usually  as  an  evidence  of 
patria  potestas  under  influence  of  ancestor-worship,  consult  Zimmer,  Altinclisches 
Leben,  328  tf.;  Kohler,  "Indisches  Ehe-  und  Familienrecht,"  ZFi?.,  111,376  ff . ; 
Letourneau,  U6volution  du  mariage,  chap,  xv;  Wake,  Marriage  and  Kinship, 
437  ff.;  Hellwald,  Die  mensch.  Familie,  478-80  (India),  381  (China). 

2  For  general  criticism  of  the  hypothesis  of  promiscuity  compare  with  Wester- 
marck, op.  cit.,  chaps,  iv-vi,  51-133;  Wake,  op.  cit.,  14-53;  Letourneau,  op.  cit.,  46  fi'.; 
Starcke,  op.  cit.,  121  ff.,  241  ff.,  passim;  Spencer,  Principles  of  Sociology,  I,  661-71, 
641  ff.,  passim;  Geosse,  Die  Formen  der  Familie,  41  ff. 

3 Westermarck,  op.  cit.,  52,53;  Belcher,  "Notes  on  the  Andaman  Islands," 
Trans.  Eth.  Soc,  N.  S.,  V,  45. 

*J(mrnal  Anth.  Inst.,  XII,  135;  Westermarck,  op.  cit.,  57. 


108  Matrimonial  Institutions 

"who  seem  to  be  the  most  numerous  tribe  of  the  central 
plateaux  of  Brazil,"  turns  out  on  examination  to  be  some- 
thing very  different  from  promiscuity,  resembling  more  the 
"temporary"  marriages  already  mentioned,  though  com- 
bined with  polygyny.  "The  communism  of  wives  among 
them,"  says  Magalhaes,'  "is  as  follows:  The  woman  as  soon 
as  she  reaches  the  age  at  which  she  is  permitted  to  have 
relations  with  a  man,  conceives  by  the  one  who  pleases  her. 
Diiring  the  period  of  gestation  and  nursing  she  is  maintained 
by  the  father  of  the  child,  who  may  have  others  in  similar 
charge  and  these  others  during  similar  periods  live  in  the 
same  cabin.  As  soon  as  the  woman  begins  to  work  she  is 
free  to  conceive  by  the  same  man  or  she  may  procure 
another,  the  charge  of  supporting  the  earlier  offspring  pass- 
ing to  the  latter."  ^  This  institution,  it  is  clear,  involves 
considerable  social  regulation.  Indeed  we  are  particularly 
warned  that  "by  communism  of  women  is  not  to  be  under- 
stood anything  like  prostitution This  distinction  is 

the  more  important  for  the  proper  comprehension  of  the 
savage  family,  since  it  is  certain  that  in  those  same  tribes 
where  this  communism  exists,  prostitutes  are  held  in  great 
displeasure."  The  custom  "is  a  mode  of  family  existence 
that  they  judge  best  according  to  their  ideas  and  means  of 
living."  With  it  Magalhaes  contrasts  the  "exclusiveness" 
of  the  neighboring  Guatos  of  the  river  Plate,  in  "Brazilian 
Paraguay,"  who  are  not  monogamous,  each  man  having 
"one,  two,  or  three  wives  according  to  his  ability  in  hunt- 
ing, fishing,  and  the  gathering  of  the  different  fruits 
which  make  up  the  base  of  their  food."  The  women  are 
exceedingly  modest.  "If  a  Guato  woman  brought  us  a  fish, 
some  game,  wild  fruit,"  or  in  any  way  sought  "something 
of  ours  that  she  wanted,  she  did  it  always  with  her  eyes 

1  Magalhaes,  op.  cit.,  108  ff. 

2 Compare  the  somewhat  analogous  "communism"  of  the  Sia :  Stevenson, 
"The  Sia,"  XI.  Rep.  of  Bureau  of  Eth.,  19-26. 


Theory  of  the  Original  Pairing  109 

fixed  on  the  ground  or  turned  toward  her  husband."  The 
related  Chambio^s  of  the  Amazon  valley  are  even  more 
severe.  Among  them  women  are  burned  for  adultery ;  and 
in  their  "widows'  men"  they  have  a  curious  device  for  the 
preservation  of  domestic  peace.'  All  these  tribes  "guard 
with  great  caution  against,  and  some  even  punish  with 
death,    the   union    of    the    two   sexes    before  the  complete 

puberty  of  the  woman Friar  Francisco  assured  me 

that  the  virginity  of  the  man  was  strictly  maintained  until 
the  epoch  of  his  marriage,  and  this  was  not  allowed  before 
he  was  twenty-five  years  of  age,  without  even  this  being  the 
ordinary  thing:  marriage  is  commonly  after  thirty."  As  a 
principal  reason  for  this  usage  are  assigned  the  "force  and 
energy  of  the  offspring."  ^ 

Savage  tribes  are  often  extremely  licentious;  but  it  is 
significant  that  the  most  immoral  are  not  always  lowest  in 
the  scale  of  development.  Besides,  it  is  well  known  that 
"contact  with  a  higher  culture,  or  more  properly,  the  dregs 
of  it,  is  pernicious  to  the  morality  of  peoples  living  in  a 
more  or  less  primitive  condition."  ^  Nor  can  promiscuity  as 
a  general  social  stage  be  assumed  from  the  existence  of  some 
tribes  whose  sexual  relations  are  but  slightly  restrained, 
since,  as  just  seen,  there  are  others,  not  otherwise  more 
advanced,  remarkable  for  the  chastity  of  the  wedded  as  well 
as  the  unwedded  life.* 

The  indirect  evidence  of  a  former  stage  of  unrestricted 

1  There  are  in  the  villages  "men  destined  to  be  viri  viduarum.  These  indi- 
Tiduals  have  no  other  duty;  they  are  supported  by  the  tribe  and  do  not,  like  the 
others,  engage  in  the  exercises  of  long  trips  which  they  all  make  annually,  each  in 
his  turn."  This  indulgence  was  justified  on  the  ground  that  "the  peace  which  the 
families  enjoyed,  and  which  they  would  not  enjoy  without  these  individuals,  or 
rather  without  this  institution,  compensated  largely  for  the  work  that  fell  uixjo 
the  others  in  supporting  them." — Magalhaes,  loc.  cit. 

2  Magalhaes,  loc.  cit. 

3  Westesmaeck,  op.  cit.,  66  fF.,  where  examples  are  given.  See  the  quotation 
from  Magalhaes  above. 

*76id.,  61ff. 


110  Matrimonial  Institutions 

sexual  relations,  based  on  the  existence  of  certain  customs 
assumed  to  be  its  survival,  particularly  female  kinship, 
exogamy,  and  polyandry,  turns  out  on  examination  to  be  even 
less  convincing  than  that  obtained  from  direct  observation. 
Primitive  man  is  usually  influenced  by  extremely  simple 
motives;  and  the  great  fault  of  speculation  has  been  the 
assignment  of  remote  and  complex  causes  for  phenomena 
which  are  often  capable  of  easier  explanation.  ,  "The  most 
important  features  of  the  life  of  a  community,"  Starcke 
observes,  "are  due  to  forces  at  once  simple  and  universal."'^ 

II.       THE    PROBLEM    OF    MOTHER-EIGHT 

Such  is  the  case  with  attempts  to  account  for  kinship  in 
the  female  line.  McLennan  tkinks  it  "inconceivable"  that 
it  can  be  due  to  any  cause  other  than  uncertainty  of  father- 
hood; and  he  holds  therefore  that  it  must  have  preceded 
the  paternal  system.^     Careful  research,  however,  has  shown 

i  Primitive  Family,  9;  ibid.,  30.  Stakcke  is  conspicuous  for  the  simple  causes 
which  he  assigns  for  the  various  phenomena  connected  with  marriage  and  the 
family.    See  examples,  op.  cit.,  43,  49,  50,  106. 

2  Studies,  I,  88,  8S-146;  Patriarchal  Theory,  chap.  xiii.  In  general,  on  kinship 
in  the  female  line,  compare  Hellwald,  Die  mensch.  Familie,  124, 150  fl.,  239,  456-58; 
LiPPERT,  Die  Geschichte  der  Familie,  4ff.,  8fE. ;  Kulturgeschichte,  11,90  S.,  passim; 
Daegun,  Mutterrecht  und  Raubehe,  1  ff.,  13,  17 ;  Mutterrecht  und  Vaterrecht,  1  £f., 
43  ff.;  Giraud-Teulon,  Origines,  131  £E.;  Post.  Geschlechtsg.,S8  S.,  94  ff. ;  Familien- 
recht,  7  ff . ;  Ursprung,  37  ff . ;  Anfdnge,  10  ff. ;  Afrikanische  Jurisprudenz,  1, 13  ff . ; 
KoHLEE,  Zur  Urgeschichte  der  Ehe,  53  ff. ;  Kovalevsky,  Tableau,  7  ff . ;  Tylor,  On  a 
Method,  252  ff. ;  Wilken,  Das  Matriarchat,  3  ff. ;  Smith,  Kinship  and  Mai~riage, 
131  ff.,  151  ff.;  Lubbock,  Origin  of  Civilization,  149  ff. ;  Morgan,  Ancient  Society, 
63  ff.,  153-83,  344  ff.  All  the  foregoing  writers  sustain  in  the  main  McLennan's  and 
Bachofen's  principal  assumptions.  On  the  other  hand,  they  are  rejected  or  criticised 
by  Spencee,  Principles  of  Sociology,  I,  665  ff. ;  Wake,  Marriage  and  Kinship,  chaps, 
viii,  ix,  X ;  BeenhOft,  in  ZVR.,  VIII,  4  ff. ;  Maine,  Early  Law  and  Custom,  chap,  vii ; 
Feiedkichs,  in  ZVR.,  \H1,  370-83 ;  X,  189  ff. ;  Schueman,  Ethical  Import  of  Darwin- 
ism,  223;  Staecke,  Primitive  Family,  1-120;  Westeemaeck,  Human  Marriage,96- 
113.  HiLDEBEAND,  Ueber  das  Problem,  28-31,  holds  that  the  earlier  mother-right  gave 
place  to  the  paternal  system  under  influence  of  property.  See  also  Letotirneau, 
L'ivolution,  421, 377  ff .,  who  believes  that  the  maternal  system  is  more  archaic,  but  does 
not  imply  promiscuity;  MuCKE,  Horde  und  Familie,  lUS.,  passim;  and  Kautsky, 
Entstehung  der  Ehe,  256  ff.,  338  ff.,  who  holds  that  the  systems  were  independently 
developed;  Grosse,  Die  Formen  der  Familie,  48  ff.,  61,  who  believes  it  possible  that 
the  two  systems  may  have  been  worked  out  side  by  side  and  that  they  are  not  neces- 
sarily successive  phases  of  development. 


Theory  op  the  Original  Pairing  111 

that  these  assumptions  are  far  from  axiomatic.  In  the  first 
place,  the  acute  criticism  of  Friedrichs  is  deserving  of 
special  attention.  Among  a  number  of  low  races  where 
relationship  with  the  begetter  is  not  recognized  he  finds  that 
certainty  of  fatherhood  through  securing  the  fidelity  of  the 
wife  nevertheless  exists.  The  number  is  small,  but  a  single 
certain  example,  he  insists,  is  sufficient  to  refute  McLennan's 
hypothesis.  Such  an  example  is  provided  by  Semper'  in 
the  case  of  the  people  of  the  Palau  Islands ;  and  it  is  all  the 
more  convincing  because  here  it  is  only  the  wife  who  is 
prohibited  from  general  sexual  intercourse,  while  young 
girls  may  give  free  play  to  their  desires,  and  in  a  measure 
this  is  not  merely  suffered,  but  even  enjoined  by  social 
custom.  "^  Indeed,  savages  know  well  how  to  secure  chastity 
on  the  part  of  their  women  by  such  "naive  arts"  as  infibu- 
lation,  so  realistically  described  by  Ploss  in  his  well-known 
book  on  woman. ^ 

While  not  denying  that  uncertainty  of  fatherhood  may 
have  been  influential  in  some  cases,  Spencer  argues  that 
without  this  assumption  it  is  perfectly  natural  that  the  child 
should  be  named  from  the  mother  with  whom  it  spends  its 
early  life;  and  where  exogamy  prevails  the  custom  would 
become  a  convenient  rule  for  determining  who  are  marriage- 
able women  within  the  group;  for  the  "requirement  that  a 
wife  shall  be  taken  from  a  foreign  tribe  readily  becomes 
confounded  with  the  requirement  that  a  wife  shall  be  of 
foreign  blood."  * 

Westermarck  seeks  a  simple  explanation  of  female  kin- 
ship in  the  necessary  relations  of  a  child  with  its  mother. 
"Especially  among  savages,  the  tie  between  a  mother  and  a 

iPalauinseln  (1873),  320, 119, 181;  Kohler,  in  ZVR.,  VI,  327. 

2  Peiedeichs,  "  Ueber  den  Ursprung  des  Matriarchats,"  ZVR.,  VIII,  374,  375. 

3  Das  Weib,  I,  172  ff.,  179  ff.  See  also  his  Das  Kind,  I,  383  ff . ;  and  compare 
Fbiedbichs,  op.  cit,  375,  376;  Hellwald,  op.  cit.,  343. 

*  Principles  of  Sociology,  I,  665,  666. 


112  Matrimonial  Institutions 


child  is  much  stronger  than  that  which  binds  a  child  to  the 
father.  Not  only  has  she  given  birth  to  it,  but  she  has  also 
for  years  been  seen  carrying  it  about  at  her  breast.  More- 
over, in  cases  of  separation,  occurring  frequently  at  lower 
stages  of  civilization,  the  infant  children  always  follow  the 
mother,  and  so,  very  often,  do  the  children  more  advanced 
in  years." '  Polygyny  has  doubtless  favored  the  choice  of 
the  female  line  of  descent;^  and  the  odd  custom  of  the 
couvade,  found  here  and  there  among  rude  peoples,  instead 
of  being  a  mark  of  transition  to  the  paternal  system,  only 
implies  some  connection  or  "some  idea  of  relationship" 
between  father  and  child  ;^  and  accordingly  simpler  and 
more  probable  reasons  for  its  origin  have  been  assigned.* 

1  Westeemaeck,  op.  cit.,  107-13;  cf.  Lubbock,  Origin  of  Civilization,  149  ff. 

2  Westeemaeck,  op.  cit.,  108 ;  Staecke,  op.  cit.,  27,  2.8,  35,  36,  40,  41, 69  n.  4,  citing 
WlNTEEBOTTOM,  An  Account  of  the  Native  Africans  in  the  Neighborhood  of  Sierra 
Leone.    Cf.,  however,  Daegun,  Mutterrecht  und  Vaterrecht,  59  ff. 

3  Westeemaeck,  op.  cit.,  106, 107, 17. 

*  In  the  couvade  the  father  occupies  the  erroneously  so-called  lying-in  bed;  is 
nursed  and  otherwise  cared  for  as  if  he  were  the  mother :  while  he  rigidly  fasts  or 
abstains  from  certain  kinds  of  food.  Gieatjd-Teulon,  Origines  du  mariage,13&; 
Bachofen,  Mutterrecht,  17,  255,  419 ;  Letoueneau,  V^volution  du  mariage,  394-98 ; 
BeenhOft,  in  ZVR.,  IX,  417;  and  Lubbock,  Origin  of  Civilization,  14  £E.,  159,  regard 
the  couvade  as  a  mark  of  transition.  Such,  in  effect,  is  also  the  view  of  Lippeet, 
Kulturgeschichte,  II,  312;  Geschichte  der  Familie,  213  ff.,  who  believes  the  custom  is 
a  form  of  redemption-sacrifice  rendered  by  the  father  instead  of  the  actual  sacri- 
fice of  the  first-born  child,  a  sacrifice  exacted  in  the  stage  of  earlier  mother-right. 
Hellwald,  Die  tnensch.  Familie,  361  ff.,  accepts  the  theory  of  Lippert.  On  the 
other  hand,  Tyloe,  Early  History  of  Mankind,  chap,  x,  297  ff. ;  Staecke,  Primitive 
Family,  51,  52,  283,  284;  and  Daegun,  Mutterrecht  und  Vaterrecht,  18-26,  hold  that  it 
takes  its  rise  in  a  supposed  physical  connection  betweeen  father  and  child,  and 
therefore  that  it  exists  for  the  welfare  of  the  child  alone.  Lubbock,  op.  cit.,  14  ff., 
emphasizes  this  fact,  while  regarding  the  practice  as  an  evidence  of  transition. 
Tyloe,  however,  in  his  Method  of  Investigating  Institutio7is,  254-56,  accepts  the  view 
of  Bachofen  and  Giraud-Teulon,  relegating  the  explanation  first  assigned  by  him  to 
a  secondary  place.  Roth,  "On  the  Significance  of  the  Couvade,"  Jour.  Anih.  Inst., 
XXII,  204-44,  holds  the  custom  to  be  a  form  of  magic  or  witchcraft,  resting  on  the 
belief  in  a  physical  connection  between  the  father  and  child,  and  so  implying  power 
over  the  child.  According  to  Ceawley,  Mystic  Rose,  416-28,  the  custom  has  its  origin 
in  sexual  taboo.  It  is  a  case  of  "  substitution."  The  father  simulates  the  mother 
so  that  by  exposing  himself  to  the  same  danger  he  may  help  her  and  the  child 
against  the  magical  or  evil  influences  which  are  especially  harmful  in  the  great 
sexual  crises  of  human  life.  Cf.  Kohlee,  "Das  Recht  der  Azteken,"  ZVR.,  XI,  49; 
MOllee,  Chips  from  a  German  Workshop,  II,  281,  278;  Ploss,  Dos  Kind,  1,  143-53; 
MucKE,  Horde  und  Familie,  219  ff. ;  Feiedeichs,  in  Ausland  (1890),  801,  837,  856,  877, 
895;  Chambeelain,  The  Child  and  Childhood  in  Folk-Thought,  124, 125. 


f 


Theory  of  the  Original  Pairing  113 

Thus  it  may  take  its  rise  in  the  notion  of  a  mysterious 
physical  connection  between  the  father  and  the  child.  "The 
well-being  of  the  child  is  its  object."  The  father  occupies 
the  so-called  lying-in  bed,  not  as  a  bed  of  sickness  "afford- 
ing rest  and  strength  after  travail,"  but  he  abstains  from 
certain  foods  lest  they  should  injure  the  child,  and  he 
fasts  in  order  that  his  powers  of  endurance  may  be  assured 
to  it.'  This  view  is  strongly  supported  by  the  fact  that 
among  many  primitive  peoples,  in  various  stages  of  advance- 
ment, the  belief  is  found  that  the  child  springs  from  the 
father  alone,  the  mother  merely  performing  the  function  of 
nourishment.^  Finally  Westermarck's  generalization  as  to 
the  real  import  of  kinship  through  females  only  may  be 
noted.  The  "facts  adduced  as  examples"  of  this  system, 
he  declares,  "imply  chiefly  that  children  are  named  after 
their  mothers,  not  after  their  fathers,  and  that  property  and 
rank  succeed  exclusively  in  the  female  line."^ 

Starcke  has  devoted  the  first  half  of  his  book  to  a  detailed 
investigation  of  the  problem  of  female  descent,  and  comes 
to  the  conclusion  that  it  depends  mainly  on  local  and  eco- 
nomic causes.  He  first  shows  that  the  clan  is  of  later  origin 
than  the  family ;  and  holds  that  these  are  by  nature  very 
different  institutions!^  The  family  is  juridical,  established 
by  contract,  and  only  "in  a  subsidiary  sense"  founded  on 
the  "tie  of  blood  between  parents  and  children;"  but  the 
clan  is  a  natural  and  homogeneous  group  of  kindred  among 
whom  degrees  of  relationship  are  not  counted.  It  is  an 
exclusive  group  into  which  the  child  is  born;  and  "it  is 
absolutely  impossible  for  one  person  to  belong  to  two  dis- 

1  Starcke,  op.  cit.,  52.  See  the  preceding  note ;  also  Lippeet,  Geachichte  der 
Familie,  213  ff.,  who  criticises  the  use  of  the  term  "lying-in  bed." 

SFusTEL  DE  CouLANGES,  Ancient  City,  47,  70,  passim;  see  further,  Westee- 
JIAECK,  op.  cit.,  107,  108;  Howitt,  Smithsonian  Report  (1883),  813;  Malue,  Early  Law 
and  Custom,  203 ;  Wilkinson,  Ancient  Egyptians,  I,  320. 

3  Human  Marriage,  97.  He  insists  on  the  powerful  influence  of  names  on  the 
rules  of  succession:  ibid..  111. 


114  Matrimonial  Institutions 

tinct  clans."  y  In  the  primitive  stage,  before  the  formation 
of  clans,  the  family  must  always  be  a  more  or  less  isolated 
group.  The  man  usually  chooses  the  place  of  abode,  and 
hence  paternal  kinship  may  be  easily  recognized.  A  con- 
siderable number  of  rude  peoples  exist  who  take  kinship 
from  the  father ;  ^  and  Starcke  is  inclined  to  believe,  though 
he  presents  rather  slender  evidence,  that  as  a  general  rule 
the  paternal  precedes  the  maternal  system.  With  the  rise 
of  the  clan  organization,  it  became  absolutely  necessary  for 
the  local  groups  to  take  one  system  or  the  other.  So  the 
"definition  of  kinship  results  from  the  conflict  between  clans, 
and  teaches  us  nothing  further  with  respect  to  the  child's 
relation  to  its  parent.  The  choice  between  the  two  possible 
lines  is  decided  by  the  economic  organization  of  the  com- 
munity and  by  the  local  grouping  of  individuals,  but  there 
is  not  the  slightest  trace  of  the  fact  that  considerations  with 
respect  to  the  sexual  relations  had  any  influence  in  the 
matter." ' 

Starcke's  opinion  that  such  rules  of  succession  depend  on 
local  connections,  those  persons  being  each  other's  heirs 
"who  dwell  together  in  one  place,"*  seems  to  gain  some 
support  from  the  result  of  Dr.  Tylor's  examination  of  the 
so-called  "beena"*  marriage  form,  which  requires  the  man 
to  live  in  the  family  of  his  wife,  usually  serving  for  her  as 

I  Staecke,  op.  cit.,  10-16,  25. 

276id.,  26,  27,  30,  58  ff.,  101 ;  Westeemaeck,  op.  cit.,  98  ff. 

3 Staecke,  op.  cit.,  118;  cf.  ibid.,  54.  Feiedeichs  agrees  with  Starcke  on  the 
essential  point.  The  uterine  system  arises  with  the  formation  of  families  and 
gentes.  In  a  very  primitive  state,  the  natural  means  of  subsistence  sufficing,  the 
children  leave  the  parents  and  look  out  for  themselves ;  as  it  becomes  more  and 
more  difficult  to  find  food  and  shelter,  family  groups  are  formed,  and  the  children 
remain  a  longer  time  with  the  mother.  Hence  naturally  the  name  and  kinship  are 
taken  from  her:  "Ueber  den  Ursprung  des  Matriarchats,"  ZVR.,  VIII,  378  fF.  Com- 
pare idem,  "  Familienstufen  und  Eheformen,"  ibid.,  X,  197  fF.,  201.  Daegun,  Mutter- 
recht  und  Vaterrecht,  43-66,  discusses  the  original  mother-right,  but  rejects  Starcke's 
theory  of  local  causes,  accepting  uncertainty  of  fatherhood  as  a  primary  influence. 
Starcke  is  also  criticised  by  Hellwald,  Die  mensch.  Familie,  4.56-58,  465,  484  ft. 

*0p.  cit.,  56, passim;  summarized  by  Westeemaeck,  op.  cit.,  110. 

5  See  above,  p.  16,  on  "beena"  marriage. 


Theory  of  the  Original  Pairing  115 

did  Jacob  for  Laban's  daughters.  It  is  remarkable  that  this 
custom  and  the  maternal  system  of  kinship  are  commonly 
found  together.  "Thus  the  number  of  coincidences  between 
peoples  where  the  husband  lives  with  the  wife's  family  and 
where  the  maternal  system  prevails,  is  naturally  large  in 
proportion,  while  the  full  maternal  system  as  naturally  never 
appears  among  peoples  whose  exclusive  custom  is  for  the 
husband  to  take  his  wife  to  his  own  home."  '  Furthermore, 
adds  Westermarck,  "where  both  customs — the  woman  receiv- 
ing her  husband  in  her  own  hut,  and  the  man  taking  his 
wife  to  his — occur  side  by  side  among  the  same  people, 
descent  in  the  former  cases  is  traced  through  the  mother,  in 
the  latter  through  the  father."  ^ 

It  seems  certain  that  the  whole  truth  regarding  the 
problems  of  kinship,  as  well  as  regarding  the  rise  and 
sequence  of  the  forms  of  the  family,  can  be  reached  only 
through  a  thorough  historical  investigation  of  the  industrial 
habits  of  mankind.  In  fact,  the  position  of  Starcke,  that 
the  rise  of  rules  of  descent  and  kinship  depends  mainly  on 
economic  and  local  causes,  is  strengthened  in  a  remarkable 
way  by  the  researches  of  Grosse,  which  have  already  been 
presented  in  outline.  Nowhere  does  promiscuity  appear 
among  the  peoples  known  to  history  or  ethnology;  and 
everywhere,  even  among  the  "lower  hunters,"  comprising 
the  most  backward  members  of   the  human  kind,  appears 

iTyloe,  On  a  Method  of  Investigating  the  Development  of  Institutions,  258.  Cf. 
Westeemarck,  op.  cit.,  109;  also  Starcke,  op.  cit.,  79,  80,  who  regards  serving  as  a 
form  of  wife-purchase,  and  the  migration  of  the  husband  as  "due  to  the  great 
cohesive  power  of  the  several  families,  which  causes  them  to  refuse  to  part  with  any 
of  their  members."  Among  various  American  peoples  it  is  the  custom  for  the  hus- 
band to  take  up  his  abode  permanently  in  the  wife's  family:  SouzA,  "Tratado 
descriptivo  do  Brazil,"  Revista  Inst.  Hist,  XIV,  311  ff . ;  Stevenson,  "The  Sia,"  XI. 
Rep.  of  Bureau  of  Eth.,  20,  22 ;  or  temporarily :  Dobeizhoffer,  Account  of  Abipones, 
II,  208,  209;  Powell,  "Wyandotte  Society,"  in  A.  A.  A.  S.,  XXIX,  681;  MacCauley, 
"Seminole  Indians,"  V.  Rep.  of  Bureau  of  Eth.,  496;  McGee,  "The  Seri  Indians," 
XVII.  Rep.  of  Bureau  of  Eth.,  280. 

2WESTEEMAECK,  op.  ctt.,  110.  Compare  Smith,  Kinship  and  Marriage,  74  ff.; 
McLennan,  Studies,  1, 101  ff. ;  and  Maesden,  History  of  Sumatra,  225. 


116  Matbimonial  Institutions 


the  single  family  in  which  the  man  holds  the  place  of  power, 
which  is  often  despotic.  There  is  no  definite  sequence 
between  the  maternal  and  the  paternal  systems.  The  exist- 
ence of  either  depends  upon  favorable  economic  conditions ; 
and  they  may  both  appear  side  by  side.  In  fact,  according  to 
Cunow,  among  the  lower  hunters,  with  the  single  exception 
of  the  Australians,  the  custom  of  female  descent  has  not  yet 
been  discovered;  and  even  in  Australia  it  is  precisely  the 
most  advanced  tribes  among  which  the  maternal  system 
appears.  It  first  arises  when  women  are  sought  outside  of 
the  original  horde,  in  order  to  prevent  intermarriage  of 
maternal  kindred.' 

In  the  light  of  present  research,  therefore,  the  most  that 
can  safely  be  admitted  concerning  the  system  of  kinship 
through  females  only  is  that  it  has  widely  existed  among 
the  races  of  mankind;^  although,  as  elsewhere  shown,  its 
prevalence  has  been  greatly  exaggerated.  Partially  under 
the  influence  of  monogamy  and  the  rise  of  modern  forms 
of  property,  it  has  often  been  superseded  by  the  parental 
and  sometimes  by  the  agnatic  system,  although  this  sequence 
is  by  no  means  invariable.  It  is  very  archaic,  yet  not  neces- 
sarily primitive.  There  is  no  satisfactory  evidence  that  it 
implies  an  original  stage  of  promiscuity.  It  is  not  impos- 
sible, in  view  of  the  facts  disclosed  by  Starcke,  that  some- 
times it  may  be  preceded  by  a  custom  in  which  the  child  is 
named  from  the  father,  and  rank  and  property  descend  in  the 

1  See  Cunow,  "  Die  Okonomischen  Grundlagen  der  Mutterherrschaft,"  Neue 
Zeit  (1897-98),  XVI,  115,  113,14,  reviewing  and  supplementing  Gkosse's  Die  i^ormen 
der  Familie,  summarized  above.  The  investigations  of  Hildebrand,  elsewhere  men- 
tioned, tend  in  the  same  direction. 

2  Letoueneau,  Uivolution  du  manage,  424,  thus  concludes  his  investigation  of 
the  question  of  kinship  :  "  Ce  qui  est  vraisemblable,  c'est  que,  dans  la  majority  des 
cas,  la  filiation  paternelle  a  succ6d6  h  la  filiation  maternelle  et  h  des  formes  famili- 
ales  plus  ou  moins  confuses."  Cf.  ibid.,  399,  400.  Max  MCllee,  BiograjJfiies  of 
Words,  p.  xvii,  thinks  that  "  we  can  neither  assert  nor  deny  that  in  unknown  times 
the  Aryans  ever  passed  through  a  metrocratic  stage."  Cf.  Westeemaeck,  op.  cit., 
104, 113. 


Theory  of  the  Original  Pairing  117 

male  line;  while  there  is  evidence  that  in  the  lower  hunting 
stage,  before  rules  of  descent  were  yet  subjects  of  reflection, 
a  kind  of  patriarchate  or  androcracy  generally  prevailed.' 

III.       THE    PROBLEM    OF    EXOGAMY 

The  case  is  much  the  same  with  the  problem  of  exogamy, 
which  is  closely  connected  with  the  question  of  kinship. 
According  to  McLennan,  as  already  seen,  exogamy,  or  the 
prohibition  of  marriage  within  the  clan,  owes  its  rise  to  wife- 
capture  occasioned  by  scarcity  of  women  through  female 
infanticide ;  and  it  is  contrasted  with  the  opposite  custom  of 
endogamy,  which,  it  is  alleged,  usually  implies  a  higher 
stage  of  civilization.  This  account  of  its  origin,  he  thinks, 
is,  on  the  whole,  the  "only  one  which  will  bear  examina- 
tion." 

How  far  it  really  falls  short  of  the  truth  was  first  pointed 
out  by  Herbert  Spencer.  "In  all  times  and  places,  among 
savage  and  civilized,"  he  says,  "victory  is  followed  by 
pillage.     Whatever  portable  things  of  worth  the  conquerors 

find,  they  take The  taking  of  women  is  manifestly 

but  a  part  of  this  process  of  spoiling  the  vanquished. 
Women  are  prized  as  wives,  as  concubines,  as  drudges ;  and, 
the  men  having  been  killed,  the  women  are  carried  off  along 
with  the  other  moveables."  Thus  "women-stealing"  is  an 
"incident  of  successful  war."  But  a  woman  so  taken  has 
a  double  value.  "Beyond  her  intrinsic  value  she  has  an 
extrinsic  value.     Like  a  native  wife,  she  serves  as  a  slave: 

1  "Among  the  lower  hunters  there  is  no  matriarchate,  but  —  if  indeed  one  may 
make  the  distinction  —  only  a  patriarchate  or  rather  an  androcracy  (Mannesherr- 
schaft).  Even  in  those  Australian  tribes  where  the  custom  of  maternal  succession 
exists,  the  woman  follows  the  man  into  his  horde  and  becomes  his  property.  Their 
children  remain  in  his  horde,  and  not  she  but  he  has  the  disposition  of  the  offspring. 
....  This  primitive  patriarchate,  of  course,  has  nothing  to  do  with  that  of  the  later 
patriarchal  family.  It  is  not  based  on  any  reflection  regarding  descent  or  the  man's 
share  in  procreation;  it  rests  simply  on  the  right  of  the  stronger,  on  the  rude  physi- 
cal superiority  of  man,  his  position  as  winner  of  the  greater  share  of  the  food  and  as 
protector"  of  the  family  community. — Cunow,  op.  cit.,  115, 116. 


118  Matrimonial  Institutions 


but  unlike  a  native  wife,  she  serves  also  as  a  trophy."  A 
warrior  possessing  such  a  token  of  prowess  gains  social  dis- 
tinction. "In  a  tribe  not  habitually  at  war,  or  not  habitually 
successful  in  war,  no  decided  effect  is  likely  to  be  produced 
on  the  marriage  customs."  But  in  warlike  and  successful 
tribes  an  "increasing  ambition  to  get  foreign  wives"  will 
arise.  Among  savages,  proofs  of  courage  are  often  required 
as  qualifications  for  marriage.  Hence  it  is  not  surprising 
that  the  abduction  of  a  foreign  woman  should  be  accepted 
as  the  best  proof  of  all.  "What  more  natural  than  that 
where  many  warriors  of  the  tribe  are  distinguished  by  stolen 
wives,  the  stealing  of  a  wife  should  become  the  required 
proof  of  fitness  to  have  one  ?  Hence  would  follow  a  peremp- 
tory law  of  exogamy."  Spencer's  interpretation,  therefore, 
agrees  with  that  of  McLennan  in  finding  the  origin  of 
exogamy  in  wife-capture  and  in  implying  that  usage  grows 
into  law.  But  it  does  not,  "like  his,  assume  either  that  this 
usage  originated  in  a  primordial  instinct,  or  that  it  resulted 
from  a  scarcity  of  women  caused  by  infanticide.'  Moreover, 
unlike  Mr.  McLennan' s,  the  explanation  so  reached  is  con- 
sistent with  the  fact  that  exogamy  and  endogamy  in  many 
cases  co-exist ;  and  with  the  fact  that  exogamy  often  co-exists 
with  polygyny;"  nor  does  it  "involve  us  in  the  difficulty 
raised  by  supposing  a  peremptory  law  of  exogamy  to  be 
obeyed  throughout  a  cluster  of  tribes."  For  if  exogamy 
would  be  likely  to  arise  in  tribes  usually  successful  in  war, 
peaceful  tribes  and  those  usually  worsted  in  war,  though 
living  side  by  side  with  the  successful  and  warlike,  would  be 
naturally  led  to  adopt  the  rule  of  endogamy.  Furthermore, 
among  tribes  not  differing  much  from  one  another  in 
strength,  endogamy  and  exogamy  may  coexist.  "Stealing 
of  wives  will  not  be  reprobated,  because  the  tribes  robbed 

I  Spencer,  Principles  of  Sociology,  1, 649-52.  It  should  be  noted  that  McLennan 
really  ascribes  the  origin  of  exogamy  to  wife-capture,  though,  inadvertently  seem- 
ingly, in  one  passage  he  refers  it  to  a  "  primitive  instinct." 


Theory  or  the  Original  Pairing  119 

are  not  too  strong  to  be  defied ;  and  it  will  not  be  insisted  on, 
because  the  men  who  have  stolen  wives  will  not  be  numerous 
enough  to  determine  the  average  opinion."  Spencer  also 
maintains  that  the  symbol  of  rape  in  the  marriage  ceremony 
does  not  necessarily  imply  the  previous  existence  either  of 
foreign  wife-stealing  or  of  exogamy,  assigning  three  other 
reasons  which  singly  or  together  may  account  for  it.  First, 
it  may  result  from  a  struggle  for  women  within  the  tribe. 
"There  still  exist  rude  tribes  in  which  men  tight  for  posses- 
sion of  women,  the  taking  possession  of  a  woman  naturally 
comes  as  a  sequence  to  an  act  of  capture.  That  monopoly 
which  constitutes  her  a  wife  in  the  only  sense  known  by  the 
primitive  man  is  a  result  of  successful  violence." '  Secondly, 
contrary  to  the  view  of  Sir  John  Lubbock,^  the  symbol  of 
rape  may  be  due  to  the  struggle  of  the  bride  and  her  female 
friends,  many  manifestations  of  which  are  found  in  the  mar- 
riage customs  of  primitive  races;  though  the  dread  of  harsh 
treatment  is  thought  to  be  an  additional  motive.  But 
Starcke,  doubting  whether  among  savages  there  is  much  to 
choose  between  the  brutality  of  the  husband  and  that  of  the 
father,  thinks  the  weeping  of  the  woman  merely  symbolizes 
her  sorrow  "on  leaving  her  former  home;  her  close  depend- 
ence on  her  family  is  expressed  by  her  lamentation."  The 
existence  of  such  symbols  is  not  surprising  in  "communities 
of  which  the  family  bond  is  the  alpha  and  omega."  ^  The 
ceremony  of  capture,  finally,  may  be  due  to  the  resistance  of 
the  father  and  other  male  friends  of  the  bride.  A  woman  has 
an  economic  value,  "  not  only  as  a  wife  but  also  as  a  daughter; 
and  all  through,  from  the  lowest  to  the  highest  stages  of 
social  progress,  we  find  a  tacit  or  avowed  claim  to  her  services 

'  See  Staecke,  op.  cit.,  217,  who  thinks  Spencer  inconsistent  with  his  own  theory  ; 
for  "  if  the  rape  of  women  can  be  practised  within  the  tribe,  it  need  no  longer  be 
assumed  that  a  young  man's  ambition  impels  him  to  take  a  wife  from  another 
tribe." 

2  Origin  of  Civilizaticm,  Ul,  130.  3  Staecke,  op.  cit.,  217,  218. 


120  Matrimonial  Institutions 

by  her  father."  Her  service  is  an  object  of  purchase;  and 
in  English  law  "we  have  evidence  that  it  was  originally  so 
among  ourselves:  in  an  action  for  seduction  the  deprivation 
of  a  daughter's  services  is  the  injury  alleged."' 

Sir  John  Lubbock  is  likewise  an  adherent  of  the  view 
that  exogamy  originates  in  wife-capture;  but  he  connects 
his  explanation  with  his  peculiar  theory  of  the  communistic 
family,  and  it  cannot  therefore  be  accepted,  if  that  theory  is 
to  be  rejected.^  He  holds  that  originally  all  the  men  and 
women  of  a  tribe  lived  in  sexual  communism  and  individual 
marriage  was  looked  upon  "as  an  infringement  of  communal 
right."  But  "if  a  man  captured  a  woman  belonging  to 
another  tribe  he  thereby  acquired  an  individual  and  peculiar 
right  to  her,  and  she  became  his  exclusively."  In  this  way, 
the  practice  of  capturing  foreign  wives  led  to  individual  mar- 
riage, and  its  evident  advantages  eventually  produced  the 
rule  of  exogamy.  Accordingly,  the  "symbol  of  rape  became 
such  an  important  part  of  the  wedding  ceremonies,  because 
it  was  the  symbol  of  giving  up  the  woman  to  become  the 
exclusive  possession  of  one  man."^  McLennan,  however, 
criticises  this  view  on  the  ground  that  "in  almost  all  cases 
the  form  of  capture  is  the  symbol  of  a  group  act  —  of  a 
siege,  or  a  pitched  battle,  or  an  invasion  of  a  house  by  an 
armed  band."  Seldom  does  it  represent  a  capture  by  an 
individual.  "On  the  one  side  are  the  kindred  of  the  husband; 
on  the  other  the  kindred  of  the  wife."  Furthermore,  if 
women  were  commonly  c&ptured  by  the  men  of  a  group  or 
parties  of  them,  as  he  justly  observes,  it  is  hard  to  see  how 
an  individual  who  had  captured  a  woman  could  appropriate 
her  more  easily  than  he  could  appropriate  any  woman  of 

1  Spencee,  op.  cit.,  I,  652-60.  Spencer  is  criticised  by  Westebmabce,  op.  cit., 
311  £F. ;  Staecke,  op,  cit.,  215  11. 

2  Lubbock,  op.  cit.,  86,  98, 103, 104-43.  Cf.  the  criticism  of  Staecke,  op.  cit.,  220, 
221;  Westermaeck,  op.  cit.,  316;  McLennan,  Studies,  I,  329-47. 

3  Staecke,  op.  cit.,  220;  Lubbock,  op.  cit.,  109  ff. 


Theory  of  the  Original  Pairing  121 

his  own  group  for  whom  he  had  a  fancy,'  Very  different  is 
the  explanation  offered  by  Tylor,  who  regards  exogamy  as 
the  primitive  mode  of  alliance  and  "political  self-preservation." 
"Among  tribes  of  low  culture  there  is  but  one  means  known 
of  keeping  up  permanent  alliance,  and  that  means  is  inter- 
marriage." Often  the  alternative  has  been  "marrying  out" 
or  "being  killed  out."  Endogamy,  on  the  other  hand,  "is 
a  policy  of  isolation,  cutting  off  a  horde  or  village,  even  from 
the  parent  stock  whence  it  separated."^  That  exogamy  has 
often,  perhaps  generally,  served  the  political  purpose  sug- 
gested by  Tylor  is  not  improbable,  and  his  view  is  sustained 
by  that  of  Post  and  Kohler;^  but  this  will  not  account  for 
its  origin. 

Both  Lubbock  and  Spencer,  it  will  be  observed,  agree 
with  McLennan  in  assigning  the  origin  of  exogamy  to  wife- 
capture.  On  the  other  hand,  a  group  of  writers,  differing 
widely  on  ancillary  questions,  unite  in  identifying  the  causes 
which  have  produced  exogamy  with  those  which,  in  general, 
have  led  to  the  establishment  of  forbidden  degrees  of  con- 
sanguinity in  marriage.  In  other  words,  tribal  or  clan 
exogamy  is  but  one  of  many  rules  for  the  prevention  of  close 
intermarriage  between  kindred.  It  must  be  admitted  that  a 
profound  horror  of  incest  is  now  "an  almost  universal 
characteristic  of  mankind,  the  cases  which  seem  to  indicate 
a  perfect  absence  of  this  feeling  being  so  exceedingly  rare 
that  they  must  be  regarded  merely  as  anomalous  aberrations 
from  a  general  rule."*  But,  from  the  beginning,  has  there 
been  an  innate  aversion  to  the  sexual  union  of  persons  closely 
related  by  blood  ?     Is  that  aversion  derived  from  experience 

1  McLennan,  op.  cit,  I,  344,  345,  329  ff. 

2  On  a  Method  of  Investigating  the  Development  of  Institutions,  267,  268;  cf, 
Westeemaeck,  op.  cit.,  316, 317. 

3KOHLEE,  "Indisches  Ehe-  und  Familienrecht, "  ZVR.,  Ill,  360-62;  Post, 
Familienrecht,  79,  83.  TyliOE,  op.  cit.,  365,  366,  denies  that  capture  and  exogamy  are 
related  as  canse  and  effect. 

♦  Westeemaeck,  op.  cit.,  290. 


122  Matrimonial  Institutions 

of  the  injurious  results  of  such  unions  ?  Did  it  originally 
extend  only  to  marriage  and  not  to  irregular  sexual  con- 
nections ?  Or,  finally,  is  it  the  indirect  result  of  a  custom, 
such  as  wife-capture,  hardening  into  a  rule  of  forbidden 
degrees  ?  These  are  questions  to  which  very  diflPerent 
answers  have  been  given. 

Adherents  of  the  horde  theory,  of  course,  deny  that  horror 
of  incest  is  a  primitive  instinct.  Such  is  the  view  also  of 
Spencer,  who  thinks  that  "regular  relations  of  the  sexes  are 
results  of  evolution,  and  that  the  sentiments  upholding  them 
have  been  gradually  established,"*  though — somewhat  incon- 
sistently, as  we  have  seen — he  agrees  with  McLennan  in 
regarding  exogamy  as  the  result  of  custom  growing  into  law. 
Lubbock  takes  a  similar  position,  denying  that  we  can 
"attribute  to  savages  any  such  farsighted  ideas"  as  the 
recognition  of  the  injurious  effects  of  close  intermarriage.' 
On  the  other  hand,  Morgan,  whose  consanguine  family 
implies  the  absence  of  any  primitive  abhorrence  of  incest, 
considers  exogamy  "explainable,  and  only  explainable  as  a 
reformatory  movement  to  break  up  the  intermarriage  of 
blood  relations,"  thus  implying  that  the  aversion  to  such  a 
union  is  derived  from  experience.^  But  knowledge  which 
"can  only  be  gained  by  lengthened  observation,"  Dr.  Peschel 
believes,  "  is  '  unattainable  by  unsettled  and  childishly  heed- 
less races,'  among  whom,  nevertheless,  a  horror  of  incest  is 
developed  most  strongly."  *  Sir  Henry  Maine,  on  the  con- 
trary, "cannot  see  why  the  men  who  discovered  the  use  of 
fire  and  selected  the  wild  forms  of  certain  animals  for 
domestication  and  of  vegetables  for  cultivation  should  not 

I  Spencee,  op.  cit.,  I,  636  ff.  2 Lubbock,  op.  cit.,  133. 

sMoEGAN,  Proceedings  of  the  American  Academy  of  Arts  and  Sciences,  Vll,  469; 
Ancient  Society,  69,  424  ff. ;  cf.  Staecke,  op.  cit.,  323;  Westeemaeck,  op.  cit.,  317. 

^Peschel,  Races  of  Man,  224;  Westeemaeck,  op.  c«'f.,  317,  318;  also  Daewin, 
Animals  and  Plants  under  Domestication,!!,  12i;  Lubbock,  "Customs  of  Marriage 
and  Systems  of  Eelationship  among  the  Australians,"  Jour.  Anth.  Inst.,  XIV,  30J 


Theory  of  the  Original  Pairing  123 

find  out  that  children  of  unsound  constitution  were  born  of 
nearly  related  parents."^  The  researches  of  Starcke,  and 
still  more  those  of  Westermarck,  render  it  almost  certain, 
however,  that  Morgan  and  Maine  are  mistaken  in  their  view, 
though  it  may  point  the  way  to  the  truth. ^ 

Starcke's  argument  leads  up  to  the  conclusion  that  the 
basis  of  exogamy  is  to  be  sought  in  the  causes  which  pro- 
duced the  clan;  for  between  the  clans  of  a  tribe  exogamy 
almost  always  prevails,  and,  without  exception,  clanless 
tribes  are  "  endogamous  or  at  least  not  exogamous."  Further- 
more, tribes  divided  into  clans  are  usually  endogamous  as  to 
the  tribe,^  Now,  prohibitions  are  found  which  cannot  be 
due  to  "exogamy  as  a  definition  of  the  clan;"  such  is  the 
prohibition  of  marriage  between  mother  and  son  where 
agnation  is  in  force,  and  "between  father  and  daughter 
where  the  uterine  line  prevails."  Since,  therefore,  "exogamy 
as  a  definition  of  the  clan  cannot  directly  produce  these  pro- 
hibitions, which  are  found  wherever  exogamy  occurs,  and  in 
some  instances  where  it  is  absent,"  the  inference  follows 
that  exogamy  must  have  its  origin  in  the  abhorrence  of  close 
intermarriage  and  the  ideas  to  which  that  is  due.  But  these 
ideas  are  not  necessarily  the  same  as  those  underlying  "the 
various  prohibited  degrees  of  marriage  which  are  now  in 
force;"  nor  do  they  imply  that  the  injuriousness  of  such 
unions  is  the  ground  of  the  aversion.  "In  a  community 
in  which  marriage  takes  place  between  consumptive  and 
syphilitic  persons,  and  those  affected  by  hereditary  disease, 
without  being  condemned  by  public  opinion,  and  still  less  by 
the  law,  it  cannot  be  said  that  the  condemnation  of  incest  is 

1  Maine,  Early  Law  and  Custom,  228. 

2DAEWIN,  op.  cit.,  II,  103, 104,  accepts  Huth's  view  (Marriage  of  Near  Kin), 
that  there  is  no  "  instinctive  feeling  in  man  against  incest  any  more  than  in  gre- 
garious animals." 

3  This  is  the  view  of  Morgan,  Ancient  Society,  512-14 ;  also  of  Maine,  op.  cit., 
221  £E. ;  FisON  and  Howitt,  Kamilaroi  and  Kurnai,  117, 138  ff . ;  Westeemaeck,  op. 
cit.,  363. 


124  Matrimonial  Institutions 


founded  on  our  regard  for  posterity."'  In  harmony  with 
his  view  that  marriage  is  juridical,  not  founded  on  sexual 
relations,  he  finds  the  origin  of  the  horror  of  marriage 
between  near  kindred  in  the  legal  incongruity  of  such  unions 
and  in  their  danger  to  the  peculiar  constitution  of  the  ancient 
family  itself.  Marriage  between  a  brother  and  sister  or 
between  a  mother  and  son  would  usually  be  impossible 
because  the  "son  possesses  nothing  which  he  could  offer  to 
the  father  as  purchase-money."  To  accomplish  the  purpose 
by  force  would  be  an  "unheard-of  crime  among  savages." 
A  connection  between  a  father  and  daughter  would  seldom 
occur,  "  since  a  father  is  unwilling  to  renounce  the  advantages 
of  bestowing  his  daughter  in  marriage."^  "If  in  this  way  an 
impression  arises  that  there  is  something  unusual  and  incom- 
patible with  other  ideas  in  marriage  between  such  persons, 
an  occasional  calamity  which  befalls  any  of  them  will  be 
enough  to  excite  the  imaginative  faculty  in  the  highest 
degree;  and  if  no  prohibition  previously  existed,  the  abso- 
lute condemnation  of  such  marriages  would  then  be  pro- 
nounced." In  a  word,  "the  intermarriage  of  individuals  of 
the  same  family  implies  that  persons  who  have  no  legal 
right  to  dispose  of  themselves  and  their  property  neverthe- 
less agree  upon  such  legal  disposition,  an  encroachment 
which  would  certainly  be  violently  opposed  by  primitive 
men."  In  the  same  way,  exogamy  will  arise  between  clans; 
and  the  co-existence  of  endogamy  and  exogamy  seems  to  be 
consistently  explained  by  this  theory.  "Exogamy  prohibits 
marriage  between  persons  who  are  so  nearly  related  that 
they  have   no  legal  independence  of  each  other;  endogamy 

'  Staecke,  op.  cit.,  212,  223,  224. 

1  In  this  part  of  his  argument  Starcke's  generalizations  are  scarcely  sustained  by 
the  evidence.  See  the  criticism  of  CuNOW,  Australneger,  180-84,  who  urges  the  well- 
known  fact  that  many  of  the  lowest  peoples  are  not  acquainted  with  wife-purchase 
at  all;  and  even  where  wife-purchase  exists,  it  might  seem  to  be  of  as  much  advan- 
tage to  a  father  to  marry  his  daughter  to  her  brother  as,  for  instance,  to  allow  the 
son  to  obtain  a  wife  by  offering  his  sister  in  exchange. 


Theory  of  the  Original  Pairing  125 

prohibits  the  marriage  of  persons  whose  legal  status  is  too 
remote  from  each  other."'  In  corroboration  of  his  view, 
Starcke  finds  evidence  that,  here  and  there,  a  distinction  is 
made  between  regular  marriage  and  sexual  intercourse,  the 
former  being  forbidden,  unless  for  special  reasons,  while  the 
latter  is  allowed.^ 

If  Starcke' s  explanation  of  the  origin  of  the  dread  of  close 
intermarriage  between  kindred  is  too  vague  and  ill  supported 
by  definite  proof,  his  original  suggestion  that  exogamy  must 
take  its  rise  in  that  horror  is  sustained  and  placed  on  a 
broader  foundation  by  the  singularly  interesting  researches 
of  Westermarck* — a  scholar  who  has  rendered  to  social 
science  a  very  important  service  by  carrying  the  principles 
of  organic  evolution  into  the  sphere  of  domestic  institutions. 
He  starts  with  the  assertion  that  horror  of  incest  is  universal. 
Writers  have,  indeed,  collected  evidence  which  they  believe 
points  to  a  time  when  such  an  aversion  did  not  exist.  Thus 
marriage  with  a  sister  is  permitted  in  Ceylon  and  Annam ; 
in  the  royal  families  of  Siam,  Burma,  and  the  Sandwich 
Islands;  while  the  same  custom  prevailed,  as  is  well  known, 
among  the  Ptolemies  of  Egypt,  and  among  the  kings  of 
ancient  Persia.*  But  these  unions  are  either  "anomalous 
aberrations"  from  the  general  rule;  or  else  they  are  allowed 
in  order  to  preserve  the  purity  of  caste  or  the  royal  blood ; 
or,  in  case  of  half-sisters,  because  relationship  is  traced  in 
one  line  only;^    while   occasionally   they  may  result  from 

1  Staecke,  op.  cit,  233,  229,  230. 

2  76id.,  227,228. 

3  Westeemaeck,  op.  cit.,  chaps,  xiv,  xv,  xvi,  290-382.  These  chapters  should 
be  read  in  the  light  of  the  results  obtained  in  those  on  "Law  of  Similarity,"  the 
"  Means  of  Attraction,"  "Sexual  Selection,"  and  the  "  Liberty  of  Choice." 

*For  the  evidence  of  incestuous  marriages,  see  Westeemaeck,  op.  cit.,  292  3., 
331  ff. ;  Staecke,  op.  cit.,  44,  209  ff . ;  Spencee,  Principles  of  Sociology,  1, 636 ;  Gieadd- 
Teulon,  Origines,  60  ff. 

5  This  may  perhaps  explain  why  half-sisters  and  half-brothers  may  marry  among 
the  Todas  where  relationship  is  in  the  male  line :  Maeshall,  A  Phrenologist  amongst 
the  Todas,  206,  221. 


126  Matrimonial  Institutions 


"extreme  isolation"  or  from  "vitiated  instincts.'"  Every- 
where prohibitions  exist,  though  they  vary  greatly  in  the 
"degrees  of  kinship  within  which  union  is  forbidden."  As 
a  rule,  "among  peoples  unaffected  by  modern  civilization  the 
prohibited  degrees  are  more  numerous  than  in  advanced 
communities,  the  prohibitions  in  a  great  many  cases  refer- 
rinof  even  to  all  the  members  of  the  tribe  or  clan." 

For  instance,  to  select  a  few  examples  from  the  wealth  of 
illustration  provided  by  Westermarck,  the  "Californian  Gua- 
lala  account  it  '  poison,'  as  they  say,  for  a  person  to  marry  a 
cousin  or  an  avuncular  relation,  and  strictly  observe  in 
marriage  the  Mosaic  table  of  prohibited  affinities."  ^  Among 
the  "Bogos  of  Eastern  Africa,  persons  related  within  the 
seventh  degree  may  not  intermarry,  whether  the  relationship 
be  on  the  paternal  or  maternal  side;"  and  a  similar  rule 
exists  among  the  Pipiles  of  San  Salvador.  "Among  the 
Kalmucks,  no  man  can  marry  a  relation  on  the  father's  side ; 
and  so  deeply  rooted  is  this  custom  among  them,  that  a  Kal- 
muck proverb  says,  'The  great  folk  and  dogs  know  no  rela- 
tionship,' alluding  to  the  fact  that  only  a  prince  may  marry 
a  relative."  Often  clan  exogamy  is  enforced  by  the  severest 
penalties.  "The  Algonquins  tell  of  cases  where  men,  for 
breaking  this  rule,  have  been  put  to  death  by  their  nearest 
kinsfolk."^ 

•  Here  and  there  among  low  races  one  finds  examples  of  alleged  incest  recorded. 
Thus  among  the  New  England  Indians  marriages  between  brothers  and  sisters  are 
said  to  have  existed:  Waitz,  Anthropologic,  III,  106.  "Among  these  people  only," 
says  Turner  of  the  Innuit  on  the  Labrador  coast,  "  have  I  heard  of  a  son  who  took 
his  mother  as  a  wife,  and  when  the  sentiment  of  the  community  compelled  him  to 
discard  her  he  took  two  other  women,  who  were  so  persecuted  by  the  mother  that  they 
believed  themselves  to  be  wholly  under  her  influence."  "  Ethnology  of  the  Ungava 
District,"  XI.  Rep.  of  Bureau  of  Eth.,  180.  So  also  D'Eveeux  suspects  incest,  not 
marriage,  between  brothers  and  sisters  among  the  Brazilian  Indians :  Voyage 
dans  le  Nord  du  Br6sil,  1613-14,  85-95.  On  the  other  hand,  Dobrizhoffer  says  the 
Abipones  abhor  marriage  with  near  kindred :  Relation,  II,  212  ;  and  the  same  appears 
to  be  true  of  the  Kafirs :  Ratzel,  History  of  Mankind,  II,  435.  See  also  the  examples 
mentioned  by  Geosse,  Die  Formen  der  Familie,  129,  130. 

2  Westermarck,  op.  cit.,  297;  Powers,  Tribes  of  California,  192. 

3  Westermarck,  op.  cit.,  297,  305,  306. 


Theory  of  the  Original  Pairing  127 

Westermarck  next  takes  up  the  origin  of  prohibited 
degrees;  and  after  a  critical  examination  of  the  various 
theories  to  explain  it,  he  comes  to  the  conclusion  that  in  no 
case  observed  is  the  prohibition  of  incest  founded  on  con- 
scious experience  of  its  injurious  effects.  It  has  not  come 
into  existence  as  the  result  of  observation  or  calculation  or 
through  education  on  the  part  of  the  savage.  Law  and  cus- 
tom might  thus  arise;  and  these  may  "prevent  passion  from 
passing  into  action,  they  cannot  wholly  destroy  its  inward 
power."  The  home  is  kept  pure  "neither  by  laws,  nor  by 
customs,  nor  by  education,  but  by  an  instinct  which  under 
normal  circumstances  makes  sexual  love  between  the  nearest 
kin  a  psychical  impossibility."  But  this  instinct  is  not  an 
^^ innate  aversion  to  marriage  with  new^  relations.''''  It  is 
rather  an  "innate  aversion  to  sexual  intercouse  between  per- 
sons living  very  closely  together  from  early  youth;"  and 
"  as  such  persons  are  in  most  cases  related,  this  feeling  dis- 
plays itself  chiefly  as  a  horror  of  intercourse  between  near 
kin."  It  is  not  "by  the  degrees  of  consanguinity,  but  by 
the  close  living  together  that  prohibitory  laws  against  inter- 
marriage are  determined."' 

This  theory,  it  will  be  noticed,  coincides  with  that  of 
Starcke  in  selecting  local  contiguity  or  the  intimate  association 
of  family  life  as  the  fundamental  fact.  It  differs,  however, 
in  several  important  particulars.  The  economic  or  legal 
motives  are  not  emphasized ;  and  Westermarck's  explanation 
is  broader  than  Starcke' s,  for  he  holds  that  the  aversion 
extends  to  sexual  connections  outside  of  regular  marriage. 

It  is  impossible  here  to  do  more  than  indicate  the  charac- 
ter of  the  evidence  by  which  Westermarck  powerfully  sup- 
ports his  conclusion.  Among  the  Greenlanders,  for  instance, 
"it  would  be  reckoned  uncouth  and  blamable,  if  a  lad  and  a 

i76id,,  318,  320,  321.  Wake,  Marriage  and  Kinship,  55,  56,  expresses  a  similar 
view. 


128  Matrimonial  Institutions 

girl,  who  had  served  and  been  educated  in  one  family,  desired 
to  be  married  to  one  another."  It  is  even  "preferred  that 
the  contracting  parties  should  belong  to  different  settle- 
ments. " '  Among  the  Kandhs,  according  to  Colonel  Mac- 
pherson,  "marriage  cannot  take  place  even  with  strangers  who 
have  been  long  adopted  into,  or  domesticated  with,  a  tribe;" 
and  the  Cis-Natalian  Kafirs  are  reputed  to  "dislike  mar- 
riage between  persons  who  live  very  closely  together,  whether 
related  or  not."^  Further  proof  is  derived  from  the  fact 
that  "many  peoples  have  a  rule  of  exogamy,  which  does  not 
depend  on  kinship  at  all."  Piedrahita,  in  the  seventeenth 
century,  "  relates  of  the  Panches  of  Bogota  that  the  men 
and  women  of  one  town  did  not  intermarry,  as  they  held 
themselves  to  be  brothers  and  sisters,  and  the  impediment  of 
kinship  was  sacred  to  them ;  but  such  was  their  ignorance 
that,  if  a  sister  were  born  in  a  different  town  from  her 
brother,  he  was  not  prevented  from  marrying  her."^  So 
also  the  "Yam^os,  on  the  river  Amazon,  will  not  suffer  an 
intermarriage  between  members  of  the  same  community  'as 
being  friends  in  blood,  though  no  real  affinity  between  them 
can  be  proved;'"  and  the  Uaupes,  of  the  same  region,  "do 
not  often  marry  with  relations,  or  even  neighbours,  prefer- 
ring those  from  a  distance,  or  even  from  other  tribes."* 

The  great  variation  in  the  extent  of  prohibited  degrees 
found  among  nations  is  "nearly  connected  with  their  close 
living  together."  Savage  and  barbarous  peoples,  "if  they 
have  not  remained  in  the  most  primitive  social  condition  of 
man,  live,  not  in  separate  families,  but  in  large  households 
or  communities,  all  the  members  of  which  dwell  in  very  close 

1  Westeemaeck,  op.  cit.,  321,  citing  Egede,  Description  of  Greenland,  141; 
Nansen,  The  First  Crossing  of  Greenland,  II,  330. 

2  Westeemaeck,  op.  cit.,  321,  citing  Macpheeson,  Memorials  of  Service  in 
India,  69. 

3Tyloe,   On   a  Method  of  Investigating  the  Development  of  Institutions,  268; 
PiEDEAHiTA,  Historia  general  (1688),  11 ;  Westeemaeck,  op.  cit.,  321. 
*  Ibid,  322 ;  Wallace,  Travels  on  the  Amazon,  497. 


Theory  op  the  Original  Pairing  129 

contact  with  each  other."  Such  are  the  house-communities 
of  the  American  aborigines,  found  everywhere,  from  the 
"long  houses"  of  the  Iroquois  to  the  vast  pueblos  or  "cities" 
of  Mexico  and  Yucatan;'  the  "joint  undivided  families"  of 
the  Hindus  and  Southern  Slavs  ;^  and  the  trevs  or  clan 
households  of  ancient  Wales,  comprising  four  generations 
living  in  one  inclosure,  whose  members  are  forbidden  to 
intermarry.^  It  is  significant  that  in  all  such  cases  we  find 
extended  prohibitions  of  close  intermarriage,  which  do  not 
exist  "where  the  family  lives  more  separately."  In  fact, 
there  is  a  marked  tendency,  amounting  almost  to  a  law,  that 
the  larger  the  family  or  clan  group,  the  wider  is  the  circle 
of  forbidden  degrees ;  and,  on  the  contrary,  the  more  isolated 
and  dispersed  the  manner  of  life,  the  greater  is  the  liberty 
of  matrimonial  choice.* 

In  the  same  way  prohibition  of  marriage  on  the  ground 
of  "affinity"  or  "spiritual  relationship"  may  take  place. 
"By  association  of  ideas"  the  "feeling  that  two  persons  are 
intimately  connected  in  some  way"  may  "give  rise  to  the 
notion  that  marriage  or  intercourse  between  them  is  incestu- 
ous." A  strong  argument  is  also  derived  from  the  "classi- 
ficatory  system  of  consanguinity."  Tylor  has  shown  that 
this  system  and  the  system  of  exogamy  are,  in  most  cases, 
found  together.  They  are  the  "two  sides  of  one  institu- 
tion."' 

But  a  deeper  and  still  more  interesting  question  remains : 
"How  has  this  instinctive  aversion  to  marriage  between  per- 

1  Morgan,  Houses  avA  House-Life  of  the  American  Aborigines ;  Fiske,  Discovery 
of  America,  I,  64  £E. ;  Westeemaeck,  op.  cit.,  324. 

2  Maine,  Early  History  of  Institutions,  7,  78,  106, 195,  200,  passim ;  Early  Law  and 
Custom,  chap,  viii;  Keauss,  Sitte  und  Branch  der  Siidslaven,  14,  64,  72,  79  £f.,  M,  etc. ; 
KoHLEE,  "Indisches  Ehe- und  Familienrecht,"  ZVR.,  Ill,  362;  cf.LiYW^i.,  Asiatic 
Studies,  chap.  vii. 

3  Lewis,  Ancient  Laws  of  Wales,  56,  57, 196.  *  Westekmaeck,  op.  cit,  323-28. 

5  TiLOE,  On  a  Method  of  Investigating  the  Development  of  Institutions,  261  ff . ;  cf, 
Westeemaeck,  op.  cit.,  328,  329. 


130  Matrimonial  Institutions 

sons  living  closely  together  originated?"  We  cannot  help 
feeling  that  through  his  masterly  solution  of  this  difficult 
problem  Westermarck  has  at  last  brought  us  very  near  to 
the  truth.  He  finds  the  key  to  it  in  the  biological  law  of 
similarity.'  It  is  demonstrated  that  a  "certain  degree  of 
similarity  as  regards  the  reproductive  system  of  two  indi- 
viduals is  required  to  make  their  union  fertile  and  the 
progeny  resulting  from  this  union  fully  capable  of  propaga- 
tion." But  the  similarity  must  not  be  too  close.  A  certain 
amount  of  differentiation  is  requisite ;  but  the  differentiation 
must  not  be  too  great.^  There  must  be  homogeneity  com- 
bined with  heterogeneity.  Among  domestic  animals  close 
interbreeding,  it  is  well  known,  leads  to  infertility  and 
degeneration;  and  Darwin's  researches  prove  that  self- 
fertilization  in  the  vegetable  kingdom  produces  the  same 
results.^  There  is  abundant  evidence  tending  to  show  that 
what  is  true  of  plants  and  the  lower  animals  is  true  also  of 
man.  "Taking  all  these  facts  into  consideration,"  says 
Westermarck,  in  closing  his  argument,  "  I  cannot  but  believe 
that  consanguineous  marriages,  in  some  way  or  other,  are 
more  or  less  detrimental  to  the  species.  And  here,  I  think, 
we  may  find  a  quite  sufficient  explanation  of  the  horror  of 
incest;  not  because  man  at  an  early  stage  recognized  the 
injurious  influence  of  close  intermarriage,  but  because  the 
law  of  natural  selection  must  inevitably  have  operated. 
Among  the  ancestors  of  man,  as  among  other  animals,  there 

1  Westekmaeck,  op.  cit.,  chap,  xiii,  and  compare  chap,  xv,  334  ff. 

2  On  sterility  as  the  result  of  crossing  in  species,  see  Wallace,  Darwinism, 
152-86;  Daewin,  Animals  and  Plants  under  Domestication,  II,  78  ff . ;  and  on  the 
good  effects  of  crossing  and  the  evil  effects  of  close  interbreeding,  ibid.,  II,  92-126, 
104.  Cf.  QuATEEFAGES,  The  Human  Species,  85-88  (crossing  species) ,  276-86  (effects  of 
crossing  in  mixed  races) ;  Mitchell,  "  Blood-Relationship  in  Marriage,"  in  Memoirs 
of  London  Anth.  Society,  1865,  II,  402-56 ;  and  Withington,  Consanguineous  Marriages, 
2  ff.,  who  believes  the  injurious  effects  of  such  unions  on  the  offspring  have  been 
overestimated.  On  the  other  hand,  it  has  been  maintained  that  under  primitive 
conditions  the  advantages  of  close  intermarriage  may  have  outweighed  all  disadvan- 
tages :  Mucke,  Horde  und  Familie,  245-47,  combating  Westermarck's  view. 

3  Daevvin,  Effects  of  Cross  and  Self -Fertilization  in  the  Vegetable  Kingdom,  436. 


Theory  op  the  Original  Pairing  131 

was  no  doubt  a  time  when  blood-relationship  was  no  bar  to 
sexual  intercourse.  But  variations,  here  as  elsewhere,  would 
naturally  present  themselves ;  and  those  of  our  ancestors  who 
avoided  in-and-in  breeding  would  survive,  while  the  others 
would  gradually  decay  and  ultimately  perish.  Thus  an 
instinct  would  be  developed  which  would  be  powerful 
enough,  as  a  rule,  to  prevent  injurious  unions.  Of  course 
it  would  display  itself  simply  as  an  aversion  on  the  part  of 
individuals  to  union  with  others  with  whom  they  lived;  but 
these,  as  a  matter  of  fact,  would  be  blood-relations,  so  that 
the  result  would  be  the  survival  of  the  fittest.  Whether 
man  inherited  the  feeling  from  the  predecessors  from  whom 
he  sprang,  or  whether  it  was  developed  after  the  evolution 
of  distinctly  human  qualities,  we  do  not  know."  ' 

Exogamy  appears,  then,  to  be  the  result  of  natural  selec- 
tion, arising  "when  single  families  united  in  small  hordes. 
It  could  not  but  grow  up  if  the  idea  of  union  between  per- 
sons intimately  associated  with  one  another  was  an  object  of 
innate  repugnance."  Conversely,  the  law  of  similarity 
enables  us  to  understand  the  coexistence  of  clan-exogamy 

iCuNOW,  Australneger,  184  ff.,  rejects  Westermarck's  theory,  first,  on  the  ground 
that  the  prohibition  of  intermarriage  in  the  cases  cited  often  extends  far  beyond  the 
local  group;  and  secondly,  because  where  the  members  of  a  gens  do  not  at  the  same 
time  form  a  local  community,  marriage  is  not  forbidden  in  the  group  of  persons 
actually  living  together.  But  Westermarck  is  dealing  with  origins;  and  he  does  not 
mean  to  say  that  all  the  existing  complex  systems  of  kinship  which  have  gradually 
been  developed  through  association  of  ideas  or  other  influences  actually  now  conform 
to  the  principle  for  which  he  contends.  On  the  other  hand  Hellwald,  Die  mensch. 
Familie,  178  £E.,  following  Wagner,  in  Kosmos,  1886, 1,  21,  24-34,  reaches  a  conclusion 
essentially  like  that  obtained  by  Westermarck.  He  finds  the  origin  of  exogamy  in  a 
dread  of  close  intermarriarge  producing  a  horror  of  incest.  During  the  period  of  the 
endogamous  mother-group  such  marriages  were  the  rule.  With  the  rise  of  fixed 
habitations  for  the  group,  beginning  in  the  glacial  age  and  carried  farther  in  the 
diluvial  period,  came  more  permanent  sexual  relations,  the  prototype  of  real 
marriage.  This  close  living  together,  because  of  its  deadening  effect  on  sexual 
attraction,  produced  a  dislike  of  unions  in  the  group,  leading  to  exogamy,  often 
accompanied  by  wife-capture  ;  although  neither  rape  nor  exogamy  must  be  regarded 
as  a  universal  stage  of  social  evolution.  Ceawley,  Mystic  Rose,  222,  223,  443  ff., 
rejects  Westermarck's  theory  of  a  general  human  "instinct "  against  inbreeding. 
He  insists  that  neither  incest  nor  promiscuity  was  "ever  anything  but  the  rarest 
exception  in  any  stage  of  human  culture,  even  the  earliest;  the  former  being  pre- 
vented by  the  psychological  difiiculty  with  which  love  comes  into  play  between 


132  Matrimonial  Institutions 

and  tribal  endogamy.  The  one  springs  from  a  horror  of 
sexual  union  between  persons  who  are  too  near;  the  other 
arises  in  a  dislike  of  connection  between  those  who  are  too 
remote.  Among  primitive  men,  and  sometimes  even  among 
those  well  advanced  in  civilization,  there  exists  a  shrinking 
from  physical  contact  with  strange  races  only  less  violent 
than  the  aversion  which  the  dread  of  incest  excites.  But 
this  prejudice  yields  to  the  sympathy  produced  by  the 
growing  similarity  of  interests,  ideas,  sentiments,  and  gen- 
eral culture  among  men.  Sympathy,  upon  which  affection 
mainly  depends,  has  widened  the  sphere  of  sexual  selection.' 

IV.       THE  PROBLEM  OF  THE  SUCCESSIVE  FORMS  OF  THE  FAMILY 

From  the  preceding  analysis  it  will  appear,  we  trust, 
that  scientific  examination  of  the  problems  of  kinship  and 
exogamy  has  disclosed  something  of  the  real  origin  of  the 
laws  which  govern  human  sexual  relations.     The  searching 

persons  either  closely  associated  or  strictly  separated  before  the  age  of  puberty,  a 
difBculty  enhanced  by  the  ideas  of  sexual  taboo,  which  are  intensified  in  the  close- 
ness of  the  family  circle,  where  practical  as  well  as  religious  considerations  cause 
parents  to  prevent  any  dangerous  connections."  Westermarck's  theory,  he  holds, 
does  not  account  for  all  the  facts ;  for  example,  "that  to  no  little  extent  brothers 
and  sisters,  mothers  and  sons,  fathers  and  daughters,  do  not  live  together.  This  is 
a  result  of  sexual  taboo,  and  is  originally  a  part  of  the  cause  why  such  marriage  is 
avoided,  and  not  a  result  of  avoidance  of  incest."  In  short,  it  "is  the  application 
of  sexual  taboo  to  brothers  and  sisters,  who,  because  they  are  of  opposite  sexes,  of 
the  same  generation,  and  are  in  close  contact,  and  for  no  other  reasons,  are  regarded 
as  potentially  marriageable,  that  is  the  foundation  of  exogamy  and  the  marriage 
system."  Cf.  Lang,  Social  Origins,  10-34,  238-40  note,  whose  criticism  of  Wester- 
marck  and  McLennan  follows  similar  lines ;  and  Atkinson,  Primal  Law,  209-40, 
who  believes  that  jealousy  may  have  set  up  a  bar  to  sexual  unions  within  the  "  fire- 
circle  "  before  totems  or  the  idea  of  incest  arose. 

1  Consult  the  very  interesting  chapter  of  Westeemaeck  on  "  Selection  as  Influ- 
enced by  Affection  and  Sympathy,  and  by  Calculation,"  op.  cit.,  356  ff.  "Affection 
depends  in  a  very  high  degree  upon  sympathy.  Though  distinct  aptitudes,  these  two 
classes  of  emotions  are  most  intimately  connected:  affection  is  strengthened  by 

sympathy,  and  sympathy  is  strengthened  by  affection If  love  is  excited  by 

contrast,  it  is  so  only  within  certain  limits.  The  contrast  must  not  be  so  great  as  to 
exclude  sympathy."— J6j(i.,  362.  "Civilization,"  he  adds,  "has  narrowed  the  inner 
limit,  within  which  a  man  or  woman  must  not  marry;"  while  "it  has  widened  the 
outer  limit  within  which  a  man  or  woman  may  marry  and  generally  marries.  The 
latter  of  these  processes  has  been  one  of  vast  importance  in  man's  history." — 
Ibid..  376. 


Theory  of  the  Original  Pairing  133 

criticism  to  which  the  theory  of  polyandry  has  been  sub- 
jected, in  connection  with  the  opposite  custom  of  polygyny, 
carries  us  still  nearer  the  truth.  For,  in  the  light  of  recent 
research,  it  does  not  seem  entirely  hopeless  to  discover  a  trace 
of  the  actual  sequence  in  which,  according  to  natural  law,  the 
general  forms  of  marriage  and  the  family  have  been  evolved, 
f  According  to  McLennan,  it  will  be  remembered,  polyan- 
dry originates  in  a  scarcity  of  women  due  to  female  infanti- 
cide; and  it  is  a  universal  phase  of  social  progress  through 
which  transition  is  made  from  promiscuity  and  the  system  of 
kinship  in  the  female  line  to  the  paternal  system  and  higher 
types  of  family  life. .  Furthermore,  he  seems  to  think,  though 
on  this  point  he  is  not  very  clear,'  that  polygyny  may  grow^ 
out  of  polyandry  through  the  practice  of  capturing  wives. 
This  theory  has  by  no  means  gone  unchallenged.^  It  has 
been  shown,  in  the  first  place,  that  the  extent  to  which  the 
custom  of  polyandry  has  prevailed  is  greatly  exaggerated. 
Though  it  is  found  among  various  peoples  in  different  parts 
of  the  world,  its  occurrence  is  on  the  whole  comparatively 
rare;  and  the  practice  is  much  less  extended  than  that  of 
polygyny.  Its  former  existence  cannot  be  inferred  from 
such  customs  as  the  niyoga  and  the  levirate;  for  these  are 
capable  of  simpler  explanation.'  It  is  highly  probable,  as 
Starcke  urges,  that  they  are  merely  expedients  for  procuring 
an  heir  or  for  conveniently  regulating  the  succession  to 
property  and  authority,*  particularly  in  the  joint  family ;  but 

1  McLennan,  Studies,  1, 116,  passim;  cf.  Spencek,  Principles  of  Sociology,  I,  679. 

2  See,  especially,  Westeemaeck,  op.  cit.,  chaps,  xx-xxiii;  Staecke,  Primitive 
Family,  128-70;  Wake,  Marriage  and  Kinship,  chaps,  v,  vi,  vii ;  and  compare  Hell- 
WALD,  Die  mensch.  Familie,  241  ff.  For  the  literature  of  polyandry,  see  p.  80,  u.  2, 
above. 

3 For  the  literature  relating  to  the  levirate  and  similar  customs,  see  above 
p.  84,  n.  2. 

♦This  may  be  the  explanation  of  the  levirate  among  the  Todas:  Maeshall,  A 
Phrenologist  amongst  the  Todas,  206-9,  213.  Similar  practical  motives  influenced  the 
rise  of  the  levirate  elsewhere :  Dorsey,  "Omaha  Sociology,"  TIF.  Rep.  of  Bureau  of 
Eth.,  258 ;  cf.  Maetius,  Ethnographic,  117,  notes ;  idem,  Rechtszustajide,  64. 


134  Matrimonial  Institutions 

there  is  no  good  reason  to  doubt  that  Spencer's  explanation 
is  adequate  in  some  cases.  "Under  early  social  systems," 
he  declares,  "wives,  being  regarded  as  property,"  are  in- 
herited like  other  possessions.^  The  procuring  of  an  heir 
through  a  brother  or  some  other  third  person  harmonizes 
with  the  "juridical  character  of  fatherhood  among  primitive 
men." ' 

Again,  not  only  is  the  general  extent  of  polyandry  limited, 
but  even  where  it  exists  it  is  confined  in  almost  every  case 
"to  a  very  small  part  of  the  population."^  It  is  sometimes 
restricted  to  the  poorer  classes,  sometimes  to  the  rich ;  and 
nearly  always  it  is  found  side  by  side  with  polygyny  or 
monogamy.  There  is  another  limitation,  already  noticed, 
which  tells  very  strongly  against  the  theory  of  its  origin  in 
promiscuity.  Polyandry  usually  shows  a  tendency  in  the 
direction  of  monogamy.  Sometimes  each  of  the  husbands 
lives  with  the  wife  during  a  certain  period,  while  the  others 
are  absent;  or  frequently,  "as  one,  usually  the  first  married, 
wife  in  polygynous  families  is  the  chief  wife;"  so  also,  "one, 
usually  the  first,  husband  in  polyandrous  families  is  the  chief 
husband."  In  him  authority  and  the  property  are  vested, 
and  ^11  the  children,  even,  are  feigned  to  be  his.*    ^ 

■  1  Spencee,  Principles  of  Sociology,  I,  679-81,  748  ff.,  750.  See,  however,  the 
criticism  of  Staecke,  op;  cit.,  151-53,  159  ff. ;  and  compare  Westeemaeck,  op.  cit., 
510 ff.;  McLennan,  Studies,  1, 108  ff.;  Fortnightly  Review  (1877),  701 ;  and  Spencee's 
"Short  Rejoinder,"  ibid.,  897.  But  elsewhere  Spencer  thinks  the  levirate  may  arise 
in  the  duty  of  caring  for  the  brother's  children  —  a  general  cause  of  polygyny: 
op.  cit.,  691,  692.  For  examples  of  inheritance  of  widows,  see  Kohlee,  "Das  Recht 
der  Azteken,"  ZVR.,  XI,  54;  "Das  Negerrecht,  namentlich  in  Kamerun,"  ibid.,  XI, 
416.  423;  and  for  widower  inheritance  among  the  Chins,  idem,  ibid.,  186 ff. 

2  Staecke,  op.  cit.,  141  ff.  For  his  theory  of  juridical  fatherhood  see  ibid., 
121-27, 135, 139 ;  and  compare  the  similar  view  of  Wake,  Marriage  and  Kinship,  78  ff. 
This  author  gives  an  interesting  discussion  of  the  case  of  Boaz  and  Ruth,  op.  cit., 
172-78,  which  may  be  compared  with  McLennan,  Studies,  1, 109  n.  3.  On  the  evidence 
for  juridical  fatherhood  among  the  Arabs,  consult  Smith,  Kinship  and  Marriage, 
119, 120. 

3  Westeemaeck,  op.  cit.,  455-57. 

*  Ibid.,  457-59,  115-17;  cf.  especially  Staecke,  op.  cit.,  135.  Hellwald,  Die 
mensch.  Familie,  264  ff.,  gives  many  interesting  details. 


Theory  of  the  Original  Pairing  1H5 

In  opposition  to  the  theory  of  McLennan  various  explana- 
tions of  the  origin  of  polyandry  have  been  advanced.  /  Spencer 
regards  both  polygyny  and  polyandry  as  mere  limitations  of 
promiscuity.  "Promiscuity  may  be  called  indefinite  poly- 
andry joined  with  indefinite  polygyny ;  and  one  mode  of 
advance  is  by  diminution  of  the  indefiniteness."  Polyandry, 
therefore,  does  not  originate  in  scarcity  of  women ;  nor  can 
it  be  due  to  poverty;  "though  poverty  may,  in  some  cases, 
be  the  cause  of  its  continuance  and  spread,"  It  is  rather 
one  of  several  independent  "types  of  marital  relations  emer- 
ging from  the  primitive  unregulated  state ;  and  one  which  has 
survived  where  competing  forms,  not  favored  by  the  condi- 
tions, have  failed  to  extinguish  it." '  Hellwald  holds  a 
similar  view.^  Robertson  Smith  traces  its  origin  to  the 
practice  of  capturing  or  of  purchasing  wives  in  common  by 
a  group  of  kinsmen;  and  in  the- case  of  purchase,  poverty  or 
the  high  price  of  women  must  have  exerted  a  favorable  influ- 
ence.^ Not  entirely  dissimilar  is  the  view  of  Wake  who, 
rejecting  the  hypothesis  of  McLennan,  believes  that  poly- 
andry can  be  satisfactorily  explained  "only  as  being  estab- 
lished, under  the  pressure  of  poverty,  either  independently 
or  as  an  ofPshoot  from  the  phase  of  punaluan  group  marriage 
in  which  several  brothers  have  their  wives  in  common."*' 
Starcke  in  like  manner  finds  that  it  "is  adapted  in  every 

iSpbncee,  Principles  of  Sociology,  I,  673-75,  678,  679.  Insufficient  food-supply 
may  cause  polygynic  and  monogamic  families  to  die  out ;  and  it  is  favorable  to  the 
survival  of  the  polyandrous  family.  But  the  infertility  of  polyandrous  families  is 
unfavorable  to  their  survival,  for  there  are  fewer  members  available  for  defense. — 
Ibid.,  681. 

2  Polyandry  is  favored  by  poverty  and  scarcity  of  women ;  but  it  is  essentially 
the  outgrowth  of  ancient  sexual  relations :  Hellwald,  op.  cit.,  258-61 ;  agreeing  with 
LiPPEET,  Kulturgeschichte,  II,  10.  Marshall,  A  Phrenologist  amongst  the  Todas, 
223  ff.,  follows  Lubbock  and  McLennan  in  regarding  polyandry  as  a  survival  of  com- 
munism. On  the  other  hand,  Fritsch,  Die  Eingeborenen  SUd-Afrikas,  227,  is  de- 
cidedly of  the  opinion  that  polyandry  among  the  Kafir  Herero  is  the  direct  result  of 
poverty  and  low  condition  (niedrige  Gesinnung) ;  it  is,  he  says,  "keine  Sitte,  sondern 
eine  Unsitte,"  harmonizing  with  the  laxity  of  their  moral  ideas. 

3  Smith,  Kinship  and  Marriage,  125  S.,  128. 
*  Wake,  Marriage  and  Kinship,  172, 134-78. 


136  Matrimonial  Institutions 

respect  to  this  organization  of  the  joint  family  group."  In 
its  highest  forms  "it  is  only  the  eldest  brother  who  is  mar- 
ried," and  "the  younger  ones  are  not  husbands,  but  merely 
specially  authorized  lovers.  There  is  nothing  to  indicate 
that  the  band  of  brothers,  as  such,  take  a  wife  in  common; 
that  is,  that  the  marriage  is  the  act  of  the  whole  commu- 
nity." Hence  "polyandry  belongs  to  the  category  of  facts 
which  have  to  do  with  the  ordinary  family  communism;" 
and  it  does  not  forfeit  its  character  of  a  marriage  in  which 
the  individual  does  not  quite  lose  his  personality  in  the 
group.  ^ 

More  satisfactory,  from  a  scientific  point  of  view,  is  the 
result  of  Westermarck's  inquiry.  This  is  so,  not  only 
because  we  feel  that  he  is  probably  right  in  his  conclusion, 
but  because  his  argument  affords  an  excellent  illustration  of 
the  success  with  which  the  statistical  method  may  be  applied 
to  social  questions.  The  way  for  a  solution  of  the  problem 
had  been  prepared  by  McLennan  and  his  critics.  They  had 
established  a  strong  probability  that  poverty  and  scarcity  of 
women  are  in  some  intimate  way  connected  with  polyandry. 
Westermarck  shows  that  there  is,  in  fact,  a  close  relation, 
but  that  relation  is  a  consequence  of  natural  selection.  The 
ultimate  causes  of  polyandry,  he  demonstrates,  are  identical 
with  the  forces  which  have  produced  a  numerical  disparity 
between  the  sexes.^  First  of  all  the  assumption'  that/'monog- 
amy  is  the  natural  form  of  human  marriage  because  there 
is  an  almost  equal  number  of  men  and  women,"  is  proved  to 
be  untenable  by  an  appeal  to  the  statistics  of  population, 

1  Staecke,  op.  cit,  135, 139, 128-70. 

2  Westekmaeck,  op.  cit.y  chap,  xxi,  in  connection  with,  chaps,  xx  and  xxii. 

3  Thus  LoED  Kames,  Sketches  of  the  History  of  Man,  I,  277  ff.,  declares  "polygyny 
to  be  an  infringement  of  the  law  of  nature,  basing  his  opinion  on  the  false  assump- 
tion that,  'in  all  countries  and  at  all  times,'  males  and  females  are  equal  in  number, 
and  supporting  it  by  the  consideration  that  the  'God  of  nature  has  enforced  conjugal 
society,  not  only  by  making  it  agreeable,  but  by  the  principle  of  chastity  inherent  in 
our  nature.'  "—Wake,  op.  cit.,  198  £F.,  who  shows  this  assumption  to  be  unfounded. 


Theory  of  the  Original  Pairing  137 

which  reveal  a  considerable  variation  in  the  numerical  pro- 
portion of  the  sexes.  Among  many  peoples  the  men  are 
greatly  in  majority ;  among  others  there  is  a  corresponding 
surplus  of  women.  This  disparity  is  in  part  easily  explain- 
able by  referring  to  the  varying  conditions  of  life  among 
different  peoples.  The  "preponderance  of  women,"  for 
instance,  "depends  to  a  great  extent  upon  the  higher  mor- 
tality of  men"  due  chiefly  to  the  "destructive  influence  of 
war"  and  the  other  dangers  and  hardships  to  which  primi- 
tive men  are  exposed.  On  the  other  hand,  the  surplus  of 
men  may,  in  some  degree,  be  ascribed  to  female  infanticide 
and,  still  more,  to  the  severe  labor  and  harsh  treatment  which 
usually  fall  to  the  lot  of  women  among  low  races.' 

But  such  causes  are  by  no  means  entirely  adequate  to 
account  for  the  numerical  inequality  of  the  sexes.  For,  in 
the  second  place,  statistics  show  a  considerable  disparity 
between  them  at  birth.  "Among  some  peoples  more  boys 
are  born,  among  others  more  girls ;  and  the  surplus  is  often 
considerable."  With  the  Todas,  for  instance,  are  found 
about  100  boys  to  80  girls  under  fourteen  years  of  age  f 
while  in  Mesopotamia,  Armenia,  Syria,  the  Arabias,  the  Holy 
Land,  and  in  various  other  portions  of  Asia,  two,  three,  or 
even  four  women  to  one  man  are  born.^  "In  Europe,  the 
average  male  births  outnumber  the  female  by  about  five  per 

cent But  the  rate  varies  in  different  countries.    Thus, 

in  Russian  Poland,  only  101  boys  are  born  to  100  girls ;  whilst, 
in  Roumania  and  Greece,  the  proportion  is  111  to  100."^ 

1  The  facts  are  collected  by  Westekmaeck,  with  elaborate  reference  to  authori- 
ties: op.  cit.,  460-66. 

2  Marshall,  A  Phrenologist  amongst  the  Todas,  100  ;  Westeemaeck,  op.  cit.,  467. 

3  Bkuce,  Travels  to  Discover  the  Sources  of  the  Nile,  I,  284  ff. ;  Westeemakck,  op. 
cit,  467,  468. 

i  Gettingen,  Moralstatistik  in  ihrer  Bedeutung  fur  eine  Socialethik,  55 ;  Wes- 
teemaeck,  op.  cit,  469.  Daewin,  Descent  of  Mem,  chap,  viii,  discusses  the  numerical 
proportion  of  the  sexes,  showing  their  inequality.  Cf.  Ploss,  Das  Weib,  I,  244-46, 
giving  a  table  of  the  number  of  male  and  female  births  for  European  countries  and 
for  several  of  the  commonwealths  of  the  United  States,  the  male  predominating. 


138  Matrimonial  Institutions 

At  this  point  Westermarck  finds  it  necessary  to  consider 
the  problem  of  the  "causes  which  determine  the  sex  of  the 
offspring."  The  view  that  sex  is  influenced  either  by  the 
relative  or  by  the  absolute  age  of  the  parents  is  untenable ; ' 
nor  can  the  theory  be  accepted  that  "polygyny  leads  to  the 
birth  of  a  greater  proportion  of  female  infants."^  The 
theory  of  Dusing,  however,  must  be  regarded  as  the  most 
probable  explanation  which  has  yet  been  advanced.^  Accord- 
ing to  him,  "the  characters  of  animals  and  plants  which 
influence  the  formation  of  sex  are  due  to  natural  selection. 
In  every  species  the  proportion  between  the  sexes  has  a 
tendency  to  keep  constant,  but  the  organisms  are  so  well 
adapted  to  the  conditions  of  life  that,  under  anomalous  cir- 
cumstances, they  produce  more  individuals  of  that  sex  of 
which  there  is  the  greatest  need.  When  nourishment  is 
abundant,  strengthened  reproduction  is  an  advantage  to  the 
species,  whereas  the  reverse  is  the  case  when  nourishment  is 
scarce.  Hence  —  the  power  of  multiplication  depending 
chiefly  upon  the  number  of  females — organisms,  when  unu- 
sually well  nourished,  produce  comparatively  more  female 

iThus,  according  to  Sadlee,  The  Law  of  Population,  II,  333  £f.,  and  Hofackee 
AND  NoTTEE,  Ueber  die  Eigenschafteti  welche  sich  bei  Meiischenund  Thieren  von  den 
Eltern  auf  die  Nachkommen  vererben,  "  more  boys  are  born  if  the  husband  is  older 
than  the  wife,  more  girls  if  the  wife  is  older  than  the  husband."  But  Noirot  and 
Breslau  have  reached  the  opposite  result ;  and  Berner,  from  Norwegian  statistics, 
has  shown  that  "the  law  is  untenable."  From  the  registers  of  births  in  Alsace- 
Lorraine,  Stieda,  Das  Sexualverhaltniss  der  Geborenen,  proves  "  that  neither  the 
relative  nor  the  absolute  ages  of  the  parents  exercise  this  sort  of  influence." 
Platter  "concludes  from  the  examination  of  thirty  million  births  that  the  less  the 
difference  in  the  age  of  the  parents  the  greater  is  the  probability  of  boys  being  born." 
For  these  authorities  and  others  see  Westeemaeck,  op.  cit.,  469,  470;  and  compare 
Thompson  and  Geddes,  Evolution  of  Sex,  32  ff.,  for  a  review  of  theories,  particularly 
the  comparative  table,  p.  35,  and  the  bibliography,  p.  40. 

2 The  authorities  are  compared  by  Westeemaeck,  op.  cit.,  470;  and  there  is  an 
interesting  discussion  of  this  point  by  Wake,  Marriage  and  Kinship,  223  ff.  Cf. 
Dakwin,  Descent  of  Man,  chap,  viii,  215  ff.  Ploss,  Das  Weib,  I,  239-44,  gives  a  com- 
parative view  of  the  notions  of  various  peoples  as  to  the  knowledge  of  sex  before  the 
birth  of  the  child. 

3  DtJsiNG,  Die  Regulierung  des  Geschlechtsverhdltnisses  bei  der  Vermehrung  der 
Menschen,  Tiere,  und  Pfianzen  (Jena,  1884),  121-237. 


Theory  of  the  Original  Pairing  139 

offspring  ;  in  the  opposite  case,  more  male.'"  The  observa- 
tions of  Ploss^  and  others^  appear  to  sustain  Diising's  hypoth- 
esis. Wherever  nourishment  is  scarce  there  seems  to  be 
a  surplus  of  male  births.  Such  is  the  case  in  highlands  as 
compared  with  lowlands ;  among  the  poor  as  compared  with 
the  rich  ;  in  sterile  regions  as  compared  with  those  that  are 
more  fertile.  Furthermore,  Dtising  has  suggested  a  second 
cause  due  also  to  natural  selection,  which  influences  the 
numerical  proportion  of  the  sexes  born ;  and  his  conclusion 
is  confirmed  by  the  researches  of  Westermarck.  Mixture  of 
race  among  animals  and  plants  appears  to  cause  a  surplus  of 
female  births  ;*  while,  on  the  contrary,  incestuous  unions, 
being  injurious  to  the  species,  "have  a  tendency  to  produce 
an  excess  of  male  offspring."*  So,  among  half-breeds,  the 
number  of  girls  usually  predominates ;®  while  among  in- 
and-in  bred  plants,  animals,  or  men  the  reverse  is  the  case. 
Hence  it  seems  probable  "that  the  degree  of  differentiation 
in  the  sexual  elements  of  the  parents  exercises  some  influence 
upon  the  sex  of  the  offspring,  so  that,  when  the  differentia- 
tion is  unusually  great,  the  births  are  in  favour  of  females ; 
when  it  is  unusually  small,  in  favour  of  males."  ^ 

Now, fit  is  a  significant  fact  that  polyandrous  peoples 
show  a  tendency  to    close  intermarriage    among    kindred ; 

1  As  summarized  by  Westermarck,  op.  cit.,  470,  471. 

2PLOSS,  Ueber  die  das  Geschlechtsverhdltniss  der  Kinder  bedingenden  Ursachen, 
21  ff.,  30,  passim. 

3  Compare  Geddes  and  Thompson,  Evolution  of  Sex,  32-54,  who  discuss  the 
literature  relating  to  sex-determination ;  and  Geddes,  article  "  Sex  "  in  Encycl.  Brit. 
See  the  bibliographies  of  the  subject  in  Geddes  and  Thompson,  op.  cit.,  40,  53,  54. 
Marshai^l,  a  Phrenologist  amongst  the  Todas,  110,  111,  regards  the  tendency  to  pro- 
duce more  males  than  females  as  due  to  natural  selection,  practiced  by  an  in-aud-ia 
breeding  people,  made  necessary  originally  by  female  infanticide.  Thus  a  "male- 
producing  variety  of  man  is  formed." 

*  Consistent  with  the  rule  is  the  fact  that  the  majority  of  illegitimate  births  are 
female. 

5>D0siNG,  op.  czi.,  237. 

6  Powers,  Tribes  of  Calif ornia,  403,  149;  Starckweather,  The  Law  of  Sex,  159 
ff. ;  Westermarck,  op.  cit.,  476-80,  who  cites  many  other  authorities. 

7  76td.,481,  482. 


140  Matrimonial  Institutions 

while  polyandrous  countries  are  notoriously  poor.  "The 
Todas  of  the  Neilgherry  Hills,"  for  instance,  "are  probably 
the  most  in-and-in  bred  people  of  whom  anything  is  known," 
and  among  them  "the  disproportion  between  male  and  female 
births  is  strikingly  in  favour  of  the  males."  But  the  "coin- 
cidence of  polyandry  with  poverty  of  material  resources" 
cannot  depend,  as  often  asserted,  "upon  the  intention  of  the 
people  to  check  an  increase  of  population,  or  upon  the  fact 
that  the  men  are  not  rich  enough  to  support  or  buy  wives 
for  themselves."  For  only  in  Tibet,  with  her  nunneries, 
among  such  peoples,  is  there  found  a  class  of  unmarried 
women ,  and  polyandry  is  often  seen  in  rich  families ; 
while  in  Ceylon  "it  prevails  chiefly  among  the  wealthier 
classes."  With  pastoral  and  agricultural  peoples  poverty 
would  be  no  reason  for  the  avoidance  of  individual  mar- 
riage, since  women  are  valuable  for  their  labor  and  "fully 
earn  their  own  subsistence."  In  some  districts  of  the 
Himalayas,  we  are  told,  "it  is  the  poor  who  prefer  polyg- 
amy, on  account  of  the  value  of  the  women  as  household 
drudges."' 

Accordingly  as  a  general  result  of  his  argument,  Wester- 
marck  concludes  that  there  is  some  reason  to  believe  that 
polyandry  originates  in  a  surplus  of  men  "due,  on  the  one 
hand,  to  poor  conditions  of  life,  on  the  other,  to  close  inter- 
marrying. As  a  matter  of  fact,  the  chief  polyandrous  peoples 
either  live  in  sterile  mountain  regions,  or  are  endogamous 
in  a  very  high  degree."^  It  does  not  follow,  however,  that 
a  surplus  of  men  will  always  produce  polyandry,  any  more 
than  a  plurality  of  women  will  always  lead  to  polygyny. 
Other  conditions  must  be  favorable.  "This  practice  pre- 
supposes," for  instance,  "an  abnormally  feeble  disposition  to 

1  Westeemaeck,  op.  cit;  475, 476,  citing  Stulpnagel,  in  Indian  Antiquary,  VII, 
135.    Cf.  Spencee,  Principles  of  Sociology,  I,  688. 

2  Westeemaeck,  op.  cit.,  482,483.  Cf.  Maeshall,  A  Phrenologist  amongst  tlie 
Todas,  110,  111,  221,  passim,  for  illustrations. 


Theory  op  the  Original  Pairing  141 

jealousy;"  and  this  is  actually  a  "peculiarity  of  all  peoples 
among  whom  polyandry  occurs."' 

/  The  evidence  adduced  seems  conclusive  that  polyandry 
holds  a  relatively  unimportant  place  in  the  sociological  his- 
tory of  mankind.  It  is  not  of  frequent  occurrence;  it  is 
usually  modified  in  the  direction  of  monogamy ;  and  it  always 
implies  a  considerable  progress  in  civilization.  The  case  is 
much  the  same  with  polygyny.^  It  is  not  a  mere  limitation 
of  promiscuity,  as  some  writers  believe,''  but  usually  makes 
its  appearance  comparatively  late  in  social  history.  It  is 
found  side  by  side  with  polyandry  and  does  not  grow  out  of 
it,  as  McLennan  supposes.  Finally,  like  polyandry,  its  im- 
portance as  a  form  of  sexual  relations  has  been  greatly  mag- 
nified. True,  polygyny  is  much  more  widely  dispersed  than 
polyandry,  being  found  perhaps  among  the  majority  of  races 
both  in  ancient  and  modern  times.*  Its  rise  is  particularly 
favored  by  the  economic  and  social  forces  which  produce  the 
patriarchal  system.^  But,  on  the  other  hand,  among  many 
barbarous  peoples  it  is  "almost  unknown  or  even  prohibited." 
Monogamy  appears  to  be  the  prevailing  form  of  the  family 
precisely  among  peoples  least  advanced  in  general  culture 

1  Westeemaeck,  op.  cit.,  515. 

2  On  polygyny  see  Swindeeen,  Disputatio  de  polygynia  (1795);  Weinhold,  Die 
deutschen  Frauen,  II,  13  ff. ;  Post,  Familienrecht,  63  ff. ;  Geschlechtsgenossenschaft, 
17  ff.,  26  ff. ;  KovALEvsKY,  Tableau,  101  ff. ;  Hellwald,  Die  mensch.  Familie,  367-437 ; 
Mason,  Woman's  Share  in  Primitive  Culture,  222  ff. ;  Daewin,  Descent  of  Man, 
chaps,  viii,  xx;  Ldbbock,  Origin  of  Civilization,  143;  Letoueneau,  V&volution  du 
viariage,  chaps,  viii,  ix,  x,  xi;  Wake,  Marriage  and  Kinship,  chap,  vi;  Spencee, 
Principles  of  Sociology,  I,  682-97 ;  Staecke,  Primitive  Family,  261  ff.,  passim ;  Wes- 
teemaeck, Human  Marriage,  431  ff.,  and  Index.  For  examples  of  polj-gyny  see 
KOHLEE,  in  ZVR.,  VII,  370,  379  (Papuas) ;  VIII,  114  (Dekkan);  IX,  324  (Bengal); 
X,  55  (Azteks) ;  97-99  (Bombay) ;  XI,  432,  433  (Kamerun) ;  Heneici,  "  Das  Eecht  der 
Epheneger,"  ZVR.,  XI,  134;  Post,  "Die  Kodification  des  Rechts  der  Amaxosa," 
ibid.,  XI,  232,  233;  Rehme,  "  Das  Eecht  der  Amaxosa,"  ibid.,  X,  36. 

3  For  instance,  Spencee,  Principles  of  Sociology,  I,  672,  688. 

*See  the  enumeration  of  polygynous  peoples  in  Westeemaeck,  op.  cit.,  431-35; 
Spencee,  op.  cit.,  I,  682, 683;  Wake,  Marriage  and  Kinship,  181  ff. ;  Mason,  Woman's 
Place  in  Primitive  Culture,  222  ff. 

5HELLWALD,  Die  mensch.  Familie,  368  ff. ;  Geosse,  Die  Formen  der  Familie, 
104  ff. 


142  Matrimonial  Institutions 


and  particularly  in  the  economic  arts.'  It  is  highly  signifi- 
cant, to  take  a  single  example,  that  among  the  Dravidian 
Veddahs  of  Ceylon,  commonly  regarded  as  anatomically  and 
intellectually  among  the  most  backward  races  of  mankind, 
monogamous  unions  last  until  death  dissolves  them.  To 
those  still  untouched  by  foreign  influences  polyandry  and 
polygyny  are  entirely  unknown.  There  is  no  prostitution. 
Conjugal  fidelity  is  remarkable.  Free  courtship  exists. 
Children  are  treated  with  kindness ;  and  in  general  the  Sar- 
asin  brothers  present  a  picture  of  pleasing  domestic  life 
among  this  singular  people.^ 

Where  polygyny  exists  it  is  sometimes  the  chiefs  alone 
who  are  "permitted  to  have  a  plurality  of  wives."  Besides, 
just  as  in  the  case  of  polyandry,  "almost  everywhere  it  is 
confined  to  a  very  small  part  of  the  people,  the  majority 
beinor  monogamous."  It  is  so  "among  all  Mohammedan 
peoples,  in  Asia  and  Europe,  as  well  as  in  Africa."  Ninety- 
five  per  cent,  of  the  Mohammedans  of  India,  for  instance,  are 
said  to  be  monogamists;  and  in  Persia,  it  is  reported,  only 
"two  per  cent,  of  the  population  enjoy  the  questionable/  ^ 
luxury  of  a  plurality  of  wives."  Among  the  American 
aborigines  monogamy  is  the  rule.  Although  polygyny,^ 
widely  exists  among  them,  seldom  are  more  than  two  wives 

1  See  the  lists  of  monogamous  peoples  in  Westeemaeck,  op.  cit.,  435-38;  and 
compare  Daewin,  Descent  of  Man,  591;  Post,  Familienrecht,  73;  Letourneau, 
U6volution  du  mariage,  chap,  xi;  and  especially  Geosse,  Die  Formen  der  Familie, 
as  above  summarized,  chap.  ii.  ^  "^ 

2SAEASIN,  Die  Weddas  von  Ceylon,  1,  457-75.  These  investigators,  sustaining 
Westermarck's  view  of  social  evolution,  regard  the  monogamy  of  the  Veddahs  aS  a 
typical  primitive  institution.  Of  course,  as  Kohlee,  Zur  Urgeschichte  der  Ehe,  10  ff., 
14  ff.,  urges  against  Westermarck  and  the  Sarasin  brothers,  the  accumulation  of  a  ■ 
great  number  of  examples  of  peoples  among  whom  monogamy  prevails  does  not 
necessarily  constitute  proof  of  the  original  condition  of  man.  It  is  possible,  for 
example,  that  the  Veddahs  are  far  advanced  beyond  their  former  condition,  or,  con- 
versely, that  they  are  a  degraded  race.  Still  the  existence  of  these  examples  of  the 
single  pairing  family  among  barbarous  and  savage  men,  as  well  as  those  found 
among  the  anthropoid  mammals,  puts  the  burden  of  proof  on  the  other  side.  At  any 
rate,  it  must  not  be  lightly  assumed  that  this  kind  of  evidence  has  been  used  more 
critically  by  the  adherents  of  the  theory  of  promiscuity  than  by  those  who  take  the 
opposite  view. 


Theory  of  the  Original  Pairing  143 

-found/  Indeed  the  numerical  proportion  of  the  sexes 
throughout  the  world  renders  it  impossible  for  polygyny  to 
J)ecome  the  general  practice.^ 

Polygyny,  like  polyandry,  is  modified  in  several  ways  in 
the  direction  of  monogamy.  Often,  as  in  Africa'  and 
among  many  American  peoples,  a  "higher  position  is  given 
to  one  of  the  wives,  generally  the  first  married."  She  pos- 
sesses superior  authority  and  becomes  the  real  mistress  of  the. 
household.  Thus,  according  to  Waitz,  among  the  Eskimo  a 
second  wife  is  seldom  taken  unless  the  first  is  childless ;  but 
in  polygynous  families  the  first  wife  has  domestic  precedence. 
The  same  is  true  generally  of  the  red  Indians  of  the  north- 

1  Polygyny  is  found,  for  example,  among  the  Innuit,  but  monogamy  is  the  rule, 
though  marriages  are  often  of  very  short  duration.  Occasionally  there  are  two, 
three,  four,  or  in  very  rare  cases  even  five  wives :  Turner,  "  Ethnology  of  the  Ungava 
District,"  XI.  Rep.  of  Bureau  of  Eth.,  182,  188, 189.  Among  the  Point  Barrow  Eskimo 
Murdoch  found  usually  one  wife,  and  never  heard  of  more  than  two :  "  Point  Barrow 
Expedition,"  ibid.,  411.  "Rich  men"  among  the  Thlinkets  often  have  two  wives: 
NiBLACK,  "Coast  Indians,"  Bep.  Smith,  hist.,  1888,  3G7,  368;  Kradse,  Die  Tlinkit 
Indianer,  220.  The  Pima  Indian  has  more  than  one  wife  when  he  can  support  them, 
for  "  the  wife  is  the  slave  of  the  husband  " :  Geossmann,  "  The  Pima  Indians  of  Ari- 
zona," Rep.  Smith,  Itist.,  1871,  415,  416.  A  Ponca  chief  married  four  wives  at  one 
time,  took  them  at  once  to  his  wigwam,  and  all  got  on  well :  Rep.  Smith.  Inst.,  1885, 
6t.  The  WyHndottes  allow  polygyny  if  the  wives  are  taken  from  different  gentes, 
but  polyandry  is  prohibited:  Powell,  "  Wyandotte  Society,"  A.  A.  A.  S.,  XXIX, 681. 
Sometimes  "  duogamy  "  is  found  among  the  Seminoles :  MacCauley,  in  V.  Rep.  of 
Bureau  of  Eth.,  iSh.  Among  the  Sioux  "a  plurality  of  wives  is  required  of  a  good 
hunter,  since  in  the  labors  of  the  chase  women  are  of  great  service":  Dorset, 
"Siouan  Sociology,"  XV.  Rep.  of  Bureau  of  Eth.,  225;  but  the  "  maximum  number 
of  wives  that  one  man  (an  Omaha  Sioux)  can  have  is  three,  e.  g.,  the  first  wife,  her 
aunt,  and  her  sister  or  niece,  if  all  be  consanguinities.  Sometimes  the  three  are 
not  kindred  " :  idem,  "  Omaha  Sociology,"  ///.  Rep.  of  Bureau  of  Eth.,  261 ;  and 
compare  Pohlee,  Zur  Urgeschichte  der  Ehe,  65  ff.,  82,  who  finds  here  an  evidence 
of  gim^ip-marriage.  One  wife  is  the  rule  among  the  South  American  Abipones: 
DOBEIZHOFFEE,  Account,  II,  209,  210;  and  Appiacds:  Guimakaes,  "Memoria," 
Revist.  Trimens.  Hist.,  VI,  307;  and  in  general  it  is  the  prevalent  form  in  South 
America:  Maetius,  Ethnographie,  II,  104;  idem,  Rechtszustande,  53.  Two  wives 
is  the  average  number  among  the  Seri:  McGee,  in  XVII.  Rep.  of  Bureau  of  Eth., 
Part  I,  279. 

2  For  a  collation  of  the  facts  as  to  the  ratio  of  polygynists  to  the  whole  popula- 
tion among  polygynous  peoples,  consult  Westeemaeck,  op.  crt.,  438-42 ;  cf.  Hellwald, 
Die  mensch.  Familie,  413,  414. 

3  Waitz,  Anthropologic,  II,  109;  but  here  the  subordinate  women  are  not  always 
legitimate  wives.  Cf.  Geosse,  Die  Formen  der  Familie,  109;  Feitsch,  Die  Eingebo- 
renen  SUd-Afrikas,  114, 192, 193,  227,  363. 


144  Matrimonial  Institutions 

west  coast,'  Among  the  Siouan  tribes  the  bride's  sisters 
sometimes  become  subordinate  wives  ;^  and  usually  where 
there  are  several,  according  to  Dorsey,  the  first  wife  and  the 
last  are  "the  favorites,  all  others  being  regarded  as  servants.'" 
The  principal  Indians  among  the  Brazilian  Tupinambds, 
says  Souza,  "have  more  than  one  wife,  and  he  who  has  most 
wives  is  the  most  honored  and  esteemed;  but  they  all  yield 
obedience  to  the  eldest  wife  and  all  serve  her."  She  "has 
her  hammock  tied  up  next  to  that  of  her  husband,  and  between 
the  two  there  is  always  a  fire  burning."*  Among  various 
peoples  it  is  required  "that  the  first  wife  shall  be  of  the  hus- 
band's rank,  whilst  the  succeeding  wives  may  be  of  lower 
birth."  Sometimes,  as  among  the  Chinese,  the  ancient 
Hebrews,  and  the  kings  of  early  Egypt,  the  secondary  wives 
really  hold  the  position  of  concubines.^  Frequently  the  hus- 
band has  a  favorite  whom  he  treats  especially  as  his  wife ;  or 

1  Waitz,  op.  cit.  III,  308,  328.  In  the  Ungava  District  the  children  of  the  first 
wife  take  precedence:  Turner,  op.  cit.,  190;  cf.  Niblack,  "Coast  Indians,"  Rep. 
Smith.  Inst,  1888,  367. 

2  McGee,  "The  Siouan  Indians,"  XV.  Rep.  of  Bureau  of  Eth.,  178. 

3  Dorset,  "Siouan  Sociology,"  ibid.,  225.  Among  the  Siouan  Om  ahas,  "  when  a 
man  wishes  to  take  a  second  wife  he  alwaj's  consults  his  first  wife,  reasoning  thus 
with  her :  '  I  wish  you  to  have  less  work  to  do.  so  I  think  of  taking  your  sister,  your 
aunt,  or  your  brother's  daughter  for  my  wife.  You  can  then  have  her  to  aid  you 
with  your  work.'  Should  the  first  wife  refuse,  the  man  cannot  marry  the  other 
woman.  Generally  no  objection  is  offered,  especially  if  the  second  woman  be  one  of 
the  kindred  of  the  first  wife.    Sometimes  the  first  wife  will  make  the  proposition  to 

her  husband The  first  wife  is  never  deposed." — Idem,  "Omaha  Sociology," 

III.  Rep.  of  Bureau  of  Eth.,  261. 

*  Souza,  "Tratado  Descriptivo  do  Brazil,"  Revist.  Inst.  Hist.,  XIV  (18.51),  311 
ff.  Compare  Maetius,  Ethnographie,  104-06,  108,  109,  notes ;  idem,  Rechtszustande, 
53,  54,  57,  58. 

5  On  these  modifications  see  Spencer,  Principles  of  Sociology,  I,  694-96 ;  Wake, 
Marriage  and  Kinship,  196,  197, 186  ff.,  210.  "  The  phases  of  this  custom  [wives of  dif- 
ferent grades]  may  be  practically  divided  into  (a)  those  in  which  all  a  man's  wives 
have  equal  rights,  (6)  and  those  where  there  is  a  superior  wife  (or  wives)  and  inferior 
ones,  the  latter  being  sometimes  legal  wives,  and  at  others  slave  wives  or  concu- 
bines."— Wake,  197.  "The  Siamese  occupy  the  almost  unique  position  of  having  four 
classes  of  wives,  of  which,  however,  the  slave  wife  answers  to  the  concubines  of 
other  forms  of  polygyny."— 76id.,  197.  Cf.  further,  Geosse,  Die  Formen  der  Familie, 
109;  Waitz,  Anthropologic,  III,  328;  Hellwald,  Die  mensch.  Familie,  368, 382  (China), 
414;  AvEEY,  "  The  Indo- Pacific  Oceans,"  Am.  Antiquarian,  VI,  366. 


Theory  of  the  Original  Pairing  145 

conversely,  as  among  the  Abipones,'  he  is  "bound  by  cus- 
tom or  law  to  cohabit  with  his  wives  in  turn."  Finally,  it  is 
important  to  note  that  everywhere  bigamy,  or  rather  duog- 
amy,  is  the  "most  common  form  of  polygyny,  and  a  multitude 
of  wives  is  the  luxury  of  a  few  despotic  rulers  or  very 
wealthy  men.'"^ 

Let  us  next  consider  the  causes  which  favor  the  rise  of 
polygyny.  It  is  highly  probable,  in  countries  "unaffected 
by  European  civilization,"  that  a  surplus  of  women  has 
exerted  an  influence  in  its  favor/  Thus  in  India  polygyny  is 
found  among  peoples  where  there  is  a  plurality  of  women, 
and  polyandry  where  the  reverse  is  the  case.*  Among  the 
Kafirs  and  the  aboriginal  tribes  of  North  America  polygyny 
usually  appears  only  where  the  women  outnumber  the  men.'^ 
This  disparity  of  the  sexes  may  sometimes  be  due  to  the 
ravages  of  war;^  but  it  is  more  likely,  as  in  the  case  of 
polyandry,  that  it  owes  its  origin  to  natural  selection,  abun- 
dance of  nourishment  tending  to  produce  an  excess  of  female 
births.  Polygyny  also  arises  from  calculation.  According 
to  Wake,  "  abundance  may  be  said  to  be  the  chief  induce- 
ment to  the  practice;"  and,  as  a  matter  of  fact,  it  is  usually 
the  wealthier  persons  among  polygynous  peoples  who  indulge 

1 "  I  have  known  many  who  kept  the  same  wife  all  their  lives.  But  if  any  Abipon 
marries  several  women,  he  settles  them  in  separate  hordes,  many  leagues  distant 
from  one  another,  and  visits  first   one,   then  the  other,  at  intervals  of  a  year." 

— DOBBIZHOFFEE,  AcCOUnt,  II,  210. 

2  WE3TEE1IAECK,  Human  Marriage,  442-50;  c/.  Staecke,  Primitive  Family, 
261,  262. 

3  This  is  the  view  of  Westeemaeck,  op.  cit.,  482,  as  opposed  to  that  of  Cheevin, 
Recherches  midico-philosophiques  sur  les  causes  physiques  de  la  polygam.ie  dans  les 
pays  chauds  (Paris,  1812),  38;  and  he  is  sustained  by  Goehleet,  "  Die  Geschlechts- 
verschiedenheit  der  Kinder  in  den  Ehen,"  ZFE.,  XIII,  127.  See  also  Spencbe, 
Principles  of  Sociology,  I,  689,  690;  Wake,  Marriage  and  Kinship,  204,  205. 

*  Wake,  op.  cit.,  205;  Westebuaeck,  op.  cit.,  482;  Goehleet,  loc.  cit. 

sSpencee,  op.  cit.,  I,  684,  689,  690;  Wake,  op.  cit.,  205 ;  Catlin,  North  American 
Indians,  I,  118. 

6  Spencee,  op.  cit.,  I,  689,  690. 


146  Matrimonial  Institutions 

in  the  luxury  of  many  wives.V  Poverty  and  the  approximate 
equality  of  the  sexes,  Spencer  holds,  are  the  natural  restric- 
tions of  polygyny.^  Again,  "superior  strength  of  body  and 
energy  of  mind,  which  gained  certain  men  predominance  as 
warriors  and  chiefs,  also  gave  them  more  power  of  securing 
women;  either  by  stealing  them  from  other  tribes  or  by 
wresting  them  from  men  of  their  own  tribe."  ^  In  this  way 
the  possession  of  a  number  of  wives  would  become  a  mark 
of  distinction.  Consequently  polygyny  sometimes  appears  as 
the  special  privilege  of  the  ruler  or  of  a  class;  and,  as 
Spencer  suggests,  from  its  association  with  greatness  it  may 
gain  popular  approbation,  just  as  monogamy  may  be  thought 
"mean"  from  its  association  with  poverty.  "Even  the  reli- 
gious sanction  is  sometimes  joined  with  the  ethical  sanction," 
as  among  the  Chippewayans.* 

Various  other  reasons  for  the  rise  and  spread  of  polygyny 
have  been  advanced.  Among  these  are  the  motives  arising 
in  passion,  such  as  man's  love  of  beauty"  and  variety,  and 
his  unwillingness  to  practice  abstinence  in  certain  seasons.® 

1  Wake,  op.  cit.,  179-81 ;  Spencek,  op.  cit.,  685.  So  the  African  has  as  many  wives 
as  he  can  bu5' ;  and  only  the  rich  in  ancient  Mexico  indulged  in  polygyny :  Waitz, 
Anthropologie,  II,  108 ;  IV,  130.  Among  the  American  Indians  the  cost  and  difficulty 
of  feeding  them  make  several  wives  the  privilege  of  the  opulent.  Increased  labor 
gives  the  California  Wintun  woman  increased  rights;  "for  then  she  extorts 
monogamy":  B-Atzei,,  History  of  Mankind,  II,  12i,  49^  (China  and  Japan).  Com- 
pare AVEEY,  "The  Indo-Pacific  Oceans,"  Am.  Antiquarian,  VI,  366. 

2 Spencer,  op.  cit.,  1,683,  684.  Cf.  Staecke,  op.  cit.,  261,  who  says:  "It  follows 
from  the  nature  of  things  ....  that  polygamy  can  never  have  been  the  normal  con- 
dition of  a  tribe,  since  it  would  have  involved  the  existence  of  twice  as  many 
women  as  men.  Polygamy  must  necessarily  have  been  restricted  to  the  noblest, 
richest,  and  bravest  members  of  the  tribe."  Spencer  holds  that  polygyny  is  con- 
nected especially  with  the  "  militant  "  stage  of  society,  as  opposed  to  the  industrial: 
op.  cit.,  706. 

3  Spencee,  op.  cit.,  I,  685,  686.  *Ibid.,  685-88 ;  cf.  Staecke,  op.  cit.,  261. 

5  Owing  to  the  hard  conditions  of  life,  female  beauty  fades  early  among  savage 
and  barbarous  peoples,  sometimes  even  among  those  reckoned  as  civilized.  A  fresh 
wife  is  demanded  when  the  first  grows  old.  In  some  cases  the  husband  is  forbidden 
by  custom  to  cohabit  with  his  wife  until  the  child  is  weaned,  though  suckling  may 
continue  two,  three,  or  four  years:  Westeemaeck,  op.  cit.,  483-88;  Ploss,  Das 
Weib,  I,  58,  59  (fading  beauty). 

6  Wake,  .Marriage  aiid  Kinship,  202  ff.,  thus  summarizes  the  causes  of  poly- 
gyny: ''First,  the  sterility  of  the  first  wife,"  as  in  the  case  of  Rachel;  ''secondly. 


Theory  of  the  Original  Pairing  147, 

More  powerful  than  these  is  the  "desire  for  offspring, 
wealth,  and  authority."  In  certain  stages  of  advancement 
the  more  children  a  man  has,  the  greater  are  his  power  and 
distinction.  His  "fortune  is  increased  by  a  multitude  of 
wives  not  only  through  their  children,  but  through  their 
labour."'  For  this  reason,  in  some  cases  where  jealousy  is 
weak,  women  cling  to  polygyny ;  since  by  sharing  the  toil  with 
others  they  hope  that  its  burden  may  be  lessened.^  Spencer 
assigns  another  cause  of  the  rise  of  polygyny  which  has 
enabled  it  to  hold  its  ground  even  against  the  superior  type, 
monogamy.  For  "  under  rude  conditions,"  he  believes  that 
"it  conduces  in  a  higher  degree  to  social  self-preservation." 
The  loss  of  population  sustained  by  the  ravages  of  war  are- 
thus  repaired.  A  bias  in  favor  of  polygyny  may  be  founded 
which  will  even  come  to  be  sustained  by  natural  selection. 
"In  a  barbarous  community  formed  of  some  wifeless  men, 
others  who  have  one  wife  each,  and  others  who  have  more 
than  one,  it  must  on  the  average  happen  that  this'-last  class 
will  be  relatively  superior — the  stronger  and  more  coura- 
geous among  savages,  and  among  semi-civilized  peoples  the 
wealthier  also,  who  are  mostly  the  more  capable.  Hence, 
ordinarily,  a  greater  number  of  offspring  will  be  left  by  men 
having  natures  of  the  kind  needed.  The  society  will  be 
rendered  ....  not  only  numerically  stronger,  but  more  of 
its  units  will  be  efficient  warriors."  Furthermore,  there  will 
be  a  "structural  advance"  as  compared  with  lower  types  of 
the  family.  Paternity  is  certain;  and,  where  descent  is 
traced  in  the  male  line,  "  inheritance  of  power  by  sons 
becomes  possible ;  and,  where  it  arises,  government  is  better 

the  length  of  time  during  which  a  ■woman  suckles  her  child;  thirdly,  the  sexual 
requirements  of  man  while  leading  a  hunting  or  pastoral  mode  of  life ;  fourthly, 
the  accidental  scarcity  of  men;  and,  fifthly,  the  luxury  or  sensuality  of  man,  or  the 
desire  for  influence  and  power." 

1  Westeemaeck,  op.  cit.,  489-91 ;  cf.  Staecke,  op.  cit.,  261. 

2  Westeemaeck,  op.  cit.,  495,  496 ;  Spencee,  op.  cit,  I,  688. 


148  Matrimonial  Institutions 

maintained."  The  family  cohesion  is  greater ;  and  "this  defi- 
nite descent  in  the  male  line  aids  the  development  of 
ancestor-worship;  and  so  serves  in  another  way  to  consol- 
idate society."*  For  these  reasons  chiefly  he  regards 
polygyny  as  a  type  of  marriage  higher  than  polyandry; 
though  he  remarks  that,  "were  it  not  for  the  ideas  of  sacred- 
ness  associated  with  that  Hebrew  history  which  in  childhood 
familiarized  us  with  examples  of  polygyny,  we  should  prob- 
ably feel  as  much  surprise  and  repugnance  on  first  reading 
about  it  as  we  do  on  first  reading  about  polyandry."^  But 
this  is  too  favorable  an  estimate  of  the  relative  social  value 
of  polygyny.  It  is  doubtful,  to  say  the  least,  whether 
morally  and  physically  it  is  more  favorable  to  the  offspring 
than  polyandry;  and  it  is  almost  certain  that  it  is  far  worse 
in  its  effects  upon  the  home  and  condition  of  women.^  This 
fact  alone,  when  considered  in  all  its  consequences,  far  out- 
weighs the  alleged  relative  structural  advantages  of  polygyny, 
which  besides  have  not  been  conclusively  established. 

But,  as  a  rule,  neither  polygyny  nor  polyandry  is  favored 
by  woman,  in  whom  the  passion  of  jealousy  is  very  strongly 
developed.  "  Polygyny  is  an  offence  against  the  feelings  of 
women,  not  only  among  highly  civilized  peoples,  but  even 
among  the  rudest  savages."  It  is  a  noteworthy  fact  that 
"  among  monogamous  savage  or  barbarous  races  the  position 
of    women  is  comparatively  good;"*    while,   on  the  other 

1  Spencee,  op.  cit,  I,  688,  689,  690  ff.,  697.  Cf.  on  causes  of  polygyny,  Lubbock, 
Origin  of  Civilization,  112. 

2  Spencee,  op.  cit.,  I,  682.  Cf.  the  similar  view  of  Wake,  Marriage  and  Kin- 
ship, 219. 

3  This  evil  effect  Spencer  himself  emphasizes,  though  he  thinks  polygjmy  favor- 
able to  women  where  the  habitat  is  unfavorable  to  their  self-support  and  men  are 
scarce :  op.  cit.,  I,  092-94.  See  Wake,  op.  cit.,  219  ff.,  for  the  relatively  advanced  con- 
dition of  women  under  polyandry ;  and  compare  Hellwald,  Die  niensch.  Familie, 
256  ff.,  who  summarizes  opinions  as  to  the  influence  of  polyandry  ;  and  Gkosse,  Die 
Formen  der  Familie,  110,  who  emphasizes  the  degradation  of  woman  among  pastoral 
polygynists. 

*  Westeemaeck,  op.  cit.,  4%-501. 


Theory  of  the  Original  Pairing  149 

hand,  polygyny  is  in  almost  every  way  degrading  to  the 
female  sex.'  Accordingly,  under  influence  of  ideas  and 
sentiments  favoring  the  freedom  and  dignity  of  woman,  both 
polygyny  and  polyandry  must  yield  to  individual  marriage. 
With  woman  in  its  favor  monogamy  could  never  be  entirely 
superseded  as  the  type  of  human  marriage.  "Polygamy 
must  disappear  as  soon  as  a  growing  development  brings  into 
play  permanent  motives  and  fundamental  forces."^  Among 
these  forces  is  the  "idea  of  procreative  conditions"  entering 
into  the  conception  of  fatherhood.  From  this  follow  chastity 
on  the  part  of  the  wife,  and  consequently  a  limit  to  the 
sexual  liberty  of  the  husband.  Out  of  this  also  sprang 
ancestor-worship,  a  powerful  force  in  differentiating  the 
monogamic  household.  "Even  in  primitive  times,  the  char- 
acter, or  soul — the  inward,  mysterious  being — of  the  father 

was  supposed  to  decide  the  character  of  the  child 

The  joy  excited  by  the  excellent  qualities  of  a  child  was  first 
aroused  in  the  breast  of  a  primitive  man  when  that  child 
owed  its  being  to  himself,  and  its  excellence  was  a  proof  of 
the  excellence  of  its  begetter,  that  is,  of  himself.  I  venture 
to  assert  that  even  now  this  idea  plays  the  strongest  part  in 

what  we  call  the  voice  of  blood Vanity,  a  sentiment 

which  is  often  condemned,  yet  not  always  blameworthy,  finds 
sustenance  in  the  most  trivial  occurrences  of  everyday  life 
from  the  thought,  'Here  I  trace  myself;  the  child  has 
inherited  that  tendency  from  me.' '"  With  advancing  culture 
and  the  growth  of  altruism  it  is  inevitable  that  monogamy 
should  assert  its  right  to  prevail  over  all  other  forms  of  the 
family  which  have  yet  appeared  among  mankind. 

1  The  facts  are  collected  by  Wake,  op.  cit.,  210  S.,  198  S.;  cf.  Spencee,  op.  cit., 
I,  693. 

2STAECKE,  Primitive  Family,  264. 

3  Ibid.,  264-66.  Oq  the  influence  of  ancestor-worship  and -the  sense  of  propriety, 
see  Wake,  op.  cit.,  chaps  vii  and  xii,  227  ff.,  234,  435  ff.  Cf.  Spencee,  op.  cit.,  I,  691, 
697 ;  and  on  monogamy,  Letoueneau,  Vivolution  du  mariage,  chaps,  six,  ii ;  Post, 
Familienrecht,  72  ff. 


150  Matrimonial  Institutions 

So  we  come  back  to  the  starting-point.  The  complex 
phenomena  of  human  sexual  relations  have  been  examined 
in  the  light  of  scientific  criticism  and  recent  research.  The 
result  seems  unmistakably  to  show  that  pairing  has  always 
been  the  typical  form  of  human  marriage.  Early  monog- 
amy takes  its  rise  beyond  the  border-line  separating  man 
from  the  lower  animals.  But,  considering  the  aberrations 
from  the  type,  development  has  been  in  a  circle.'  At  the 
dawn  of  human  history  individual  marriage  prevails,  though 
the  union  is  not  always  lasting.  In  later  stages  of  advance- 
ment, under  the  influence  of  property,  social  organization, 
social  distinctions,  and  the  motives  to  which  they  gave  rise, 
various  forms  of  polyandry  and  polygyny  make  their  appear- 
ance, though  monogamy  as  the  type  is  never  superseded. 
"Nothing,  indeed,  is  more  favourable  to  polygyny,"  says 
Westermarck,  "than  social  differentiation."^  In  its  "highest 
and  regulated  form,"  declares  Morgan,  "it  presupposes  a 
considerable  advance  of  society,  together  with  the  develop- 
ment of  superior  and  inferior  classes,  and  of  some  kinds 
of  wealth."^  Furthermore  there  is  direct  evidence  in  some 
cases  that  a  transition  from  monogamy  has  actually  occurred.* 
At  a  still  more  advanced  stage  of  culture,  under  pressure  of 
those  influences  which  have  led  to  the  social  elevation  of 
woman,  polygyny  yields  in  turn  to  monogamy.  "When  the 
feelings  of  women  are  held  in  due  respect,  monogamy  will 
necessarily  be  the  only  recognized  form  of  marriage.  In  no 
way  does  the  progress  of  mankind  show  itself  more  clearly 

1  See  Stakcke's  masterly  summary  in  chapter  vii,  "  Marriage  and  its  Develop- 
ment," who  reaches  the  conclusion  presented  in  the  text.  Westekmaeck,  chaps, 
xxi,  xxii,  xxiv,  obtains  practically  the  same  result.  Compare  also  Wake,  op.  cit., 
chap,  xii,  who  holds  that  group-marriage  in  the  Australian  and  Punaluan  forms  is 
the  original  type  of  marriage.  Then  follow  polyandry  and  polygyny;  and  these 
are  in  turn  superseded  by  monogamy.  Hellwald,  Die  mensch.  FaniiUe,  389, 
declares  that  polyandry  and  polygyny  are  the  rule,  and  in  this  sense  more  "natural" 
than  monogamy. 

2  Westeemakck,  op.  cit,  505,  506. 

3  MoKGAN,  Systems  of  Consanguinity,  477.  *  Westeemakck,  op.  cit.,  507,  508, 


Theory  op  the  Original  Pairing  151 

than  in  the  increased  acknowledgment  of  women's  rights, 
and  the  causes  which,  at  lower  stages  of  development,  maj 
make  polygyny  desired  by  women  themselves,  do  not  exist 
in  highly  civilized  societies.  The  refined  feeling  of  love, 
depending  chiefly  upon  mutual  sympathy  and  upon  appre- 
ciation of  mental  qualities,  is  scarcely  compatible  with  poly- 
gynous  habits ;  and  the  passion  for  one  has  gradually  become 
more  absorbing."*  But  the  later  monogamy  difPers  from 
the  earlier  in  one  important  characteristic.  The  primitive 
monogamy  "is  not  a  form  of  marriage  which  can  be  regarded 
as  the  expression  of  a  marriage  law ;  that  is,  it  is  not  a  form 
of  marriage  which  is  striving  for  the  mastery,  and  which 
cannot  tolerate  other  co-existent  forms  of  marriage.  On  the 
other  hand  the  later  monogamy,  which  arises  from  a  distinct 
condemnation  of  polygamy,  or  from  a  secret  aversion  to  it, 
is  characterized  by  self-assertion,  and  seeks  to  exclude  other 
forms  of  marriage."^ 

For  a  full  understanding  of  the  evolution,  which  has  here 
been  sketched  in  outline,  there  remains,  however,  a  fact  of 
primary  importance  to  which  but  casual  reference  has  thus 
far  been  made :  the  element  of  contract  in  the  marriage 
relation.  This  fact  will  receive  some  consideration  in  the 
next  chapter. 

1  Ibid,,  509.  3  Stabckk,  op.  cit,  264,  265,  255,  258, 259. 


CHAPTER  IV 

RISE  OF  THE  MARRIAGE  CONTRACT 

[Bibliographical  Note  IV.— The  literature  for  this  chapter  may 
be  more  briefly  indicated,  since  it  is  largely  identical  with  the  authori- 
ties mentioned  in  Bibliographical  notes  I,  II,  and  III.  The  researches 
of  Starcke,  Westermarck,  Darwin,  Letourneau,  and  Wake  are  of  pri- 
mary importance,  and  marriage  by  capture  and  purchase  are  of  course 
essential  parts  of  McLennan's  Studies  I  and  II,  and  the  Patriarchal 
Theory.  Particularly  valuable  are  the  monographs  of  Dargun,  Mutter- 
recht  und  Rauhehe  and  his  Mutterrecht  und  Vaterrecht ;  Kulischer, 
"Intercommunale  Ehe  durchRaub  und  Kauf,"  in  ZFE.,  VIII ;  Kohler, 
"Studien  tiber  Frauengemeinschafi,  Frauenraub,  und  Frauenkauf," 
ibid.,  V  ;  Kautsky,  "  Entstehung  der  Ehe  und  der  Familie,"  in  Kosmos, 
XII ;  and  Schroeder,  Hochzeitsbrduche  der  Esten  (Berlin,  1888), 
containing  a  description  of  many  curious  "survivals."  A  mass  of 
miscellaneous  information  relating  to  marriage  customs  may  also  be 
found  in  Schmidt,  Hochzeiten  in  Thiiringen  (Weimar,  1863) ;  Wood, 
The  Wedding  Day  (New  York,  1869) ;  and  especially  in  the  Hochzeits- 
buch  of  Duringsfeld  (Leipzig,  1871). 

For  a  full  and  systematic  treatment  of  the  matrimonial  law  and 
usage  of  many  low  races  see  the  various  books  by  Post,  especially  his 
Entwicklungsgeschichte  des  Familienrechts,  Anfange  des  Staats-  und 
Rechtsleben,  and  the  Afrikanische  Jurisprudenz. 

Illustrations  of  matrimonial  law  and  usage  may  be  found  in  Henrici, 
" Das  Volksrecht  der  Epheneger,"  in  ZVR.,XI;  Kohler,  "Das  Recht 
der  Papuas  auf  Neu-Guinea,"  ibid.,  VII;  his  "Das  Recht  der  Birma- 
nen,"  and  "Das  Recht  der  Chins,"  both  ibid.,  VI;  Farrer,  "Early 
Wedding  Customs,"  in  his  Primitive  Manners  (London,  1879) ;  Volkov, 
"Rites  et  usages  nuptiaux  en  Ukraine,"  in  V anthropologic,  II,  III 
(Paris,  1891-92) ;  Ellis,  "  Survivals  from  Marriage  by  Capture,"  in  Pop. 
Sci.  Monthly,  June,  1891  (New  York,  1891) ;  Loring,  "Marriage,"  in  his 
A  Co7ifederate  Soldier  in  Egypt  (New  York,  1884) ;  Blumentritt,  Ethno- 
graphie  der  Philippinen  (Gotha,  1882) ;  and  Wessely,  "  Ein  griechischer 
Heiratscontract  vom  Jahre  1.36  n.  Ch.,"  in  Xenia  Austriaca,  I  (Vienna, 
1893).  Useful  material  will  likewise  be  found  in  Weinhold,  Deutsche 
Frauen  (Vienna,  1882) ;  Harrison,  "  Religion  and  Family  among  the 
Haidas"  (Queen  Charlotte  Islands),  in  Jour.  Anth.  Inst.,  XXI  (London, 
1891);  Crawley,  "Sexual  Taboo,"  ibid.,  XXIV  (London,  1894-95);  his 

152 


KiSE  OP  THE  Marriage  Contract  153 

Mystic  Bose  (London  and  New  York,  1902) ;  and  Floessel,  Die  Schwie- 
germutter  (Dresden  1890). 

For  the  question  of  sexual  selection  with  Darwin  compare  Wallace, 
Darioinism  (London,  1891);  Poulton,  Colours  of  Animals  (New  York, 
1890):  and  Weismann,  Studies  in  the  Theory  of  Descent  (London,  1880- 
82). 

Hebrew  marriage  is  treated  by  Michaelis,  Ahhandlung  von  den 
Ehegesetzen  Mosis  (Gottingen,  1768) ;  his  Commentaries  on  the  Laws  of 
Moses  (London,  1814);  Lichtschein,  Die  Ehe  nachmosaisch-talmudischer 
Auffassung  (Leipzig,  1879; ;  Mielziner,  The  Jeivish  Law  of  Marriage 
and  Divorce  (Cincinnati,  1884) ;  Weill,  La  femme  Juive  (1874) ;  Kurtz, 
Die  Ehe  der  Sohne  Qottes  mit  den  Tochtern  der  Menschen  (Berlin,  New 
York,  and  Adelaide,  1857) ;  his  Die  Ehe  des  Propheten  Hosea  (Dorpat, 
1859) ;  Stubbe,  Die  Ehe  im  Alten  Testament  (Jena,  1886) ;  Ellis,  "Mar- 
riage and  Kinship  among  the  ancient  Israelites,"  in  Pop.  Sci.  Monthly, 
XLII  (New  York,  1892-93),  325-37;  Bergel,i)ie  Eheverhaltnisse  der  alten 
Juden  (Leipzig,  1881) ;  Duschak,  Das  nwsaisch-talmudische  Eherecht 
(Vienna,  1864) ;  especially  DoUinger's  rare  book,  Heidenthum  tmd 
Judenthum,  (Regensburg,  1857),  containing  a  comparison  of  Grecian, 
Roman,  and  Hebrew  laws  and  social  customs.  For  Babylon  see  the 
works  of  Simcox,  Sayce,  Kohler,  and  Haupt  mentioned  in  the  Biblio- 
graphical Index,  I. 

For  the  matrimonial  institutions  of  China,  see  Parker,  "Compara- 
tive Chinese  Law,"  in  China  Review,  VIII  (Hong-Kong,  1879-80) ; 
Mollendorflf,  Z)as  chinesische  Familienrecht  {Shanghai,  1895);  Katscher, 
Bilder  aus  dem  chinesischen  Leben  (Leipzig  and  Heidelberg,  1881) ; 
idevi,  Aus  China  (Leipzig,  1887) ;  Tscheng-ki-Tong,  Chinese  Painted 
by  Themselves  (London,  1885) ;  Arene,  La  Chine  famili^re  (Paris,  1883) ; 
Hue,  Chinese  Empire  (London,  1855) ;  Gray,  China  (London,  1878) ; 
Fielde,  "Chinese  Marriage  Customs,"  in  Pop.  Sci.  Monthly,  XXXIV 
(New  York,  Dec.  1888);  Kohler,  "Aus  dem  chinesischen  Civilrecht," 
ZVR.,  VI ;  Giles,  Chinese  Sketches  (London,  1876) ;  Grosier,  De  la 
Chine,  Tome  V  (1819) ;  and  Smith's  valuable  Village  Life  in  China 
(New  York,  Chicago,  and  Toronto,  1899),  especially  Part  II.  For  the 
usages  of  allied  races  see  Rockhill,  "Notes  on  the  Ethnology  of 
Tibet,"  in  Report  of  Smith.  Inst.,  1893,  Nat.  Museum  (Washington, 
1895);  Kohler,  "Studien  aus  dem  japanischen  Recht,"  in  ZVR.,  X; 
Koehne,  "Das  Recht  der  Kalmucken,"  ibid.,  IX;  Dalmas,  Les  Japo- 
nais  (Paris,  1885);  Daigoro,  "Family  Relations  in  Japan,"  in  Transac- 
tions of  the  Japan  Society,  II ;  Rein,  Japan  nach  Reisen  und  Studien 
(Leipzig,  1881);  Hitchcock,  "The  Ainos  of  Yezo,  Japan,"  in  Report 
of  Smith.  Inst,  1890,  Nat.  Museum  (Washington,  1891);  Araki, 
Japanisches  Eheschliessungsrecht  (Gottingen,  1893) :  Loti,  "Woman 
in  Japan,"  in  Harpers  Monthly  (New  York,  1890),  LXXXII,  119-31; 


154  Matrimonial  Institutions 

and  Titsingh,  C6r6monies  usities  au  Japon  (Paris,  1822),  the  first  vol- 
ume containing  very  curious  and  valuable  matter  concerning  wedding 
customs. 

By  far  the  most  thorough  and  comprehensive  researches  regarding 
the  culture  and  social  life  of  the  American  aborigines  have  been  made 
by  American  scholars  in  the  Contributions  to  American  Ethnology, 
the  Reports  of  the  Bureau  of  Ethnology,  the  Reports  of  the  Smithso- 
nian Institution,  including  those  of  the  National  Museum,  and  in 
various  periodicals,  notably  the  American  Antiquarian  and  the  Ameri- 
can Anthropologist.  The  most  important  of  these  papers  for  Indian 
marriage  and  family  customs  are  Dorsey,  "  Omaha  Sociology,"  in  III. 
Rep.  of  Bureau  of  Eth.,  205-370  (Washington,  1884),  supplemented 
by  his  "  Siouan  Sociology,"  ibid.,  XV,  205-M  (Washington,  1897) ;  Mc- 
Gee,  "  Siouan  Indians,"  ibid.,  XV,  153-204  ;  idem,  "  The  Seri  Indians," 
ibid.,  XVII,  Part  I  (Washington,  1898) ;  Mooney,  "  Siouan  Tribes  of 
the  East,"  in  XVII.  Rep.  of  Bureau  of  Eth.  (Washington,  1894) ;  Riggs, 
"Dakota  Grammar,  Texts,  and  Ethnography,"  in  Contributions  to  N.A. 
Ethnology,  IX  (Washington,  1893) ;  and  the  elaborate  work  of  Powers, 
"Tribes  of  California"  (Washington,  1877),  constituting  the  third 
volume  of  the  same  series.  Some  important  illustrations  of  the  matri- 
monial usages  of  the  Eskimo  may  be  found  in  Murdoch,  "Eth.  Results 
of  Point  Barrow  Expedition,"  in  IX.  Rep.  of  Bureau  of  Eth.  (Washing- 
ton, 1892) ;  Nelson,  "  The  Eskimo  about  Bering  Strait,"  ibid.,  XVIII, 
Part  I  (Washington,  1899);  and  Turner,  "Ethnology  of  the  Ungava 
District,"  ibid.,  XI  (Washington,  1894).  See  also  MacCauley,  "The 
Seminole  Indians,"  ibid.,  V  (Washington,  1887) ;  Stevenson,  "The  Sia," 
ibid.,  XI,  3-157  (Washington,  1894) ;  Hoffman,  "  Menomini  Indians," 
ibid.,  XIV  (Washington,  1896);  Grossmann,  "The  Pima  Indians  of 
Arizona,"  in  Report  Smith.  Inst.,  1871  (Washington,  1873) ;  Beckwith, 
"  Notes  on  Customs  of  the  Dakotahs,"  ibid.,  1886,  Part  I  (Washington, 
1889) ;  Willoughby,  "Indians  of  the  Quinaielt  Agency,"  ibid.,  Part  I ; 
Eells,  "Twana,  Chemakum,  and  Klallam  Indians,"  ibid.,  1887  (Washing- 
ton, 1889) ;  Niblack,  "  Coast  Indians  of  Southern  Alaska  and  Northern 
Brit. Col.;' ibid.,  1888,  Nat.  Museum  (Washington,  1890);  Boaz,  "Social 
Organization  and  Secret  Societies  of  the  Kwakiutl  Indians,"  ibid.,  1895, 
Nat.  Museum  (Washington,  1897);  Stephen,  "The  Navajo,"  in  Am. 
Anthropologist,  VI  (Washington,  1893);  Grinnell,  "Marriage  among 
the  Pawnees,"  ibid.,  IV  (Washington,  1891) ;  Corbusier, "  Apache-Yumas 
and  Apache-Mojaves,"  in  Am.  Antiquarian,  VIII  (Chicago,  1886); 
Beauchamp,  "Aboriginal  Communal  Life,"  ibid.,  IX  (Chicago,  1887), 
attacking  Morgan's  views ;  Peet,  "  Village  Life  and  Clan  Residences 
among  the  Emblematic  Mounds,"  ibid.,  IX ;  his  "  Ethnographic  Reli- 
gions and  Ancestor  Worship,"  and  his  "Personal  Divinities  and  Culture 
Heroes,"  both  ibid.,  XV  (Chicago,  1893) ;  Powell,  "Wyandotte  Society," 


KiSE   OP    THE   MaRRIAOE    CONTRACT  155 

in  Proc.  Am.  Assoc.  Adv.  ScL,  XXIX  (Salem,  1880);  Boauchamp, 
"Permanence  of  Early  Iroquois  Clans  and  Sachemships,"  ibid.,  XXXIV 
(Salem,  1886) ;  Mallery,  "Israelite  and  Indian,"  ibid.,  XXXVIII  (Salem, 
1890);  Fletcher's  papers  on  totemism  and  animism  in  "Emblematic 
Use  of  the  Tree  in  the  Dakotan  Group,"  and  her  "Study  from  the 
Omaha  Tribe/'  both  ibid.,  XLV,  XLVI  (Salem,  1897-98) ;  Halbert, 
"  Courtship  and  Marriage  among  the  Choctaws  of  Mississippi,"  in  Amer. 
Naturalist,  March,  1832 ;  Carr,  "  The  Social  and  Political  Position  of 
Women  among  the  Huron-Iroquois  Tribes,"  XVI.  Rep.  of  Peabody 
Museum  (Cambridge,  1883). 

Very  valuable  early  notices  of  the  social  customs  of  the  Brazilian 
Indians  may  be  found  in  Stade,  Captivity  among  the  wild  Tribes  of 
eastern  Brasil,  1547-55  (London,  1874);  Anchieta,  "Informagao  dos 
Casamentos  dos  Indios  do  Brasil,"  in  Revista  Trimensal,  VIII  (Rio  de 
Janeiro,  1867);  Souza,  "Tratado  descriptivo  do  Brazil  em  1587," 
Revista  do  Tnstituto  Hist,  e  Geog.,  XIV  (Rio  de  Janeiro,  1851) ;  Lery, 
Du  mariage,  polygamie,  et  degrez  de  consanguinity  (3d  ed.,  Geneva, 
1585) ;  D'Evreux,  Voyage  dans  le  nord  du  Bresil,  1613-14  (Leipzig  and 
Paris,  1864);  Moure,  "Les  Indiens  de  la  province  de  Matto-Grosso 
(Brfeil),"  in  Nouvelles  annales  des  voyages,  1862,  II  (Paris);  Guima- 
raes,  "  Costumes  e  Linguagem  dos  Appiaacfe  .  ,  .  .  de  Matto-Grosso," 
in  Revista  Trimensal,  VI  (2d  ed.,  Rio  de  Janeiro,  1865) ;  and  Magal- 
haes,  "Familia  e  Religiao  Selvagem,"  Revista  Trimensal  do  Instituto, 
etc.,  XXXVI  (Rio  de  Janeiro,  1873, 1876).  With  these  may  be  read  the 
important  accounts  of  Lafitau,  Moeurs  des  sauvages  (Paris,  1724);  Pratz, 
"Des  moeurs  et  coutumes  des  peuples  de  la  Louisiane  (Natchez),"  in 
his  Hist,  de  la  Louisiane,  II  (Paris,  1758) ;  and  Dobrizhoffer's  descrip- 
tion of  "  weddings  "  and  "  marriages  "  in  his  Account  of  the  Abipones, 
an  Equestrian  People  of  Paraguay  (London,  1822 ;  Latin  ed.,  1784), 
among  whom  he  lived  as  missionary  for  eight  years  after  his  arrival  in 
1749.  There  is  also  a  very  interesting  passage  in  Humbolt,  Vues  de 
Cordilleres  (Paris,  1810).  See  further  Von  den  Steinen's  Unter  den 
Naturvolkern  Brasiliens,  1887-8  (Berlin,  1894) ;  Martins,  Von  dem 
Reehtszustande  unter  den  Ureinwohnern  Brasiliens  (Munich,  1832) ; 
which  is  reprinted  with  other  matter  in  his  Beitrdge  zur  Ethnographie 
und  Sprachenkunde  Amerikas  zumal  Brasiliens  (Leipzig,  1867) ;  and 
Adam,  Du  jmrler  des  hommes  et  du  parler  des  femmes  dans  la  langue 
Caraibe  (Paris,  1879).  Much  material  is  also  contained  in  Rink,  Eskimo 
Tribes  (Copenhagen  and  London,  1887) ;  his  Tales  and  Traditions 
of  the  Eskimo  (Edinburgh  and  London,  1875) ;  Catlin,  North  American 
Indians  (London,  1841);  Schoolcraft,  Indian  Tribes  (Philadelphia, 
1853-56);  Bsiwcvoit,  Native  Races  (New  York,  1875-76);  Kohler,  "Das 
Recht  der  Azteken,"  in  ZVR.,  XI ;  Vols.  Ill  and  IV  of  Waitz,  Anthro- 
pologie;  Krause,  Die  Tlinkit-Indianer   (Jena,  1885);   and  Bandelier 


156  Matrimonial  Institutions 

"Social  Organization  and  Mode  of  Government  of  the  Ancient  Mexi- 
cans," in  Rep.  Peabody  Museum,  II,  557-699. 

Among  the  many  works  cited  in  this  chapter  which  have  already 
been  enumerated  in  preceding  Bibliographical  Notes  especially  impor- 
tant are  those  of  Jolly,  Leist,  Krause,  Rossbach,  Morgan,  Bernhoft, 
Friedrichs,  Spencer,  Lubbock,  Ploss,  Lippert,  Robertson  Smith,  Finck, 
Grosse,  Hellwald,  and  various  writings  of  Kohler.] 

Everywhere  among  our  ancestors,  when  authentic  history 
dawns  upon  the  institutions  of  the  Germanic  race,  marriage 
is  effected  by  means  of  a  contract.  The  transaction  is  a 
contract  of  sale  through  which  for  a  price  the  bride  is  con- 
veyed by  the  father  or  guardian  into  the  bridegroom's  hand. 
But,  as  will  appear  later,  the  element  of  sale  is  rapidly  taking 
on  a  symbolical  character.  The  question  arises  in  the  outset 
as  to  the  antiquity  of  contract  in  marriage.  Is  it  of  com- 
paratively late  origin,  as  is  often  assumed  ?  Or  can  the 
element  of  agreement,  of  consent  of  the  parties,  be  traced 
from  the  very  beginning  of  the  human  family  ?  Again, 
what  is  the  character  and  what  the  historical  significance  of 
marriage  by  purchase  ?  Is  it  the  earliest  form  of  matri- 
monial contract,  and  does  it  constitute  a  universal  phase  of 
development  subsequent  to  that  of  capturing  women  ? 

I.  WIFE-CAPTURE    AND    THE    SYMBOL    OF    RAPE  ^ 

According  to  McLennan,  as  we  have  already  seen,  capture 
as  a  means  of  getting  wives  is  a  universal  practice  among 
primitive  men.  It  is  due  to  polyandry  occasioned  by  a 
scarcity  of  women ;  it  leads  to  exogamy ;  and  it  is  generally 

iFor  wife-capture  see  McLennan,  Studies,  I,  31  fF. ;  II,  57  ff.,  268  fJ.,  passim; 
Patriarchial  Theory,  chap,  xiii;  Post,  Familienrecht,  97  ff.,  137-57;  Geschlechtsge- 
nossenschaft,  54  £E. ;  Ursprung  des  Rechts,  47,  57;  Anfdnge,2(lQ;  Grundlagen,Z2^  S..\ 
240;  AfrikanischeJurisprudenz,  1,323  ff. ;  Hellwald,  Die  mensch.  Familie,  275-86; 
Grosse,  Die  Formen  der  Familie,  105  ff. ;  Achelis,  Entwicklung  der  Ehe,  79  ff. ; 
KULISCHER,  "  Intercom munale  Ehe  durch  Raub  und  Kauf,"  ZFE.,  X,  192  ff. ;  Letotje- 
neau,  L^ evolution  du  mariage,  110-29;  Dargun,  Mutterrecht  und  Raubehe; 
Schroeder,  Hochzeitsbrduche  der  Esten,  14  ff. ;  Westermarck,  Human  Marriage, 
383-90;  Starcke,  Primitive  Family,  20Q  S., passim;  Lubbock,  Origin  of  Civilization, 
104-33;  Giraud-Teulon,  Les  origines,  117  ff. ;  Lippert,  Geschichte  der  Familie,  42  ff., 
100  ff.,  95-118, 148  ff. ;  idem,  Kultur geschichte,  II,  93  ff.,  103, 129;  Wake,  Marriage  and 


Rise  op  the  Marriage  Contract  157 

superseded  by  contract  in  the  form  of  wife-purchase.'  The 
evidence  of  the  former  universality  of  the  custom  is  derived 
from  two  sources:  first,  the  existence  of  actual  wife-capture 
among  many  peoples  in  all  parts  of  the  world ;  second,  the 
symbol  of  rape  in  the  marriage  ceremony  or  in  the  prelimi- 
nary act  of  taking  the  woman.  The  symbol,  it  is  held,  can 
be  accounted  for  only  as  a  survival  of  real  capture.  Other 
writers  agree  with  McLennan  in  regarding  the  evidence  as 
conclusive.  Such,  in  effect,  is  the  view  of  Dargun,  though 
he  admits  that  it  cannot  with  absolute  certainty  be  assumed 
that  capture  was  ever  the  only  form  of  marriage  recognized.^ 
Post,  on  the  other  hand,  declares  that  the  universality  of 
wife-stealing  is  beyond  question ;  and  he  holds  that  it  is  a 
natural  incident  of  the  genealogical  organization  of  society. 
It  is  connected  in  the  closest  manner  with  the  exogamous 
system  peculiar  to  that  organization,  appearing  as  one  of  the 
means  by  which  marriage  can  be  brought  about  between 
members  of  different  gentile  groups.  It  was,  in  short,  the 
legal  means  of  procuring  a  wife.^ 

Nevertheless,  a  careful  study  of  the  facts  makes  it  almost 

Kinship,  402-34,  246  ff.,  305,  350;  Kohlee,  "Studien,"  ZVR^  V,  334-68;  Friedkichs, 
"Familienstufen  und  Eheformen,"  ibid.,  X,  212,  213;  BernhOft,  "Principien  des 
europaischen  Familienrechts,"  ibid.,  IX,  392-406;  Leist,  Alt-arisches  Jus  Gentium, 
126  £f. ;  Zmigrodski,  Die  Mutter,  249  ff. ;  Kautsky,  in  Kosmos,  XII,  256  ff.,  338  ff. ; 
HiLDEBRAND,  TJeber  das  Problem,  17  ff . ;  Heusler,  Institutionen,  II,  277-86 ;  Muckb, 
Horde  und  Familie,  108  S.,  passim ;  Spencee,  in  Various  Fragments,  74  ff.,  replying 
to  McLennan. 

1  McLennan,  Studies,  I,  chaps,  ii-vi,  passim;  Patriarchal  Theory,  chap.  xiii. 

2"Ein  zweites,  bemerkenswertes  Factum  ist,  dass  es  vergeblich  ware  ein  Volk 
finden  zu  woUen,  von  welchem  direkt  erwiesen  werden  kOnnte,  es  schliesse  gegen- 
wartig  sammtliche  Ehen  auf  dem  Wege  des  Raubes,  oder  habe  sie  jemals  nur  auf 
diesem  Wege  geschlossen.  Daher  kann  nicht  mit  voller  Sicherheit  behauptet 
werden,  der  Frauenraub  sei  je  einzige  Eheschliessungsform  gewesen.  Urn  so 
wahrscheinlicher  ist  es,  dass  er  gewOhnliche,  vorherrschende  Eheschliessungsform 
war,  da  sich  nur  unter  dieser  Voraussetzung  die  allgemeine  Anwenduug  der 
Entfahrungssymbolik  bei  den  einzelnen  VOlkern  erklaren  lasst,"— Daegun,  ilfwiter- 
recht  und  Raubehe,  79,  80. 

3  Post,  Familienrecht,  137, 138.  Kohler  also  regards  capture  as  a  general  stage 
preceding  that  of  wife-purchase :  "Studien,"  ZVR.,Y,  336;  idem,  "Indischos  Ehe- 
und  Familienrecht,"  ibid.,  ZVR.,  Ill,  .342  ff. ;  and  such  also  is  the  view  of  Lippeet, 
Geschichte  der  Familie,  42  ff.,  44,  95-118. 


158  Matrimonial  Institutions 

certain  that  the  significance  of  wife-stealing  as  a  sociological 
element  has  been  greatly  exaggerated,  and  its  true  relation 
to  marriage  strangely  misunderstood.'  It  is  perfectly  natural 
that  savage  or  barbarous  races  should  seize  women  as  a  part 
of  the  ordinary  spoils  of  war.  Everything  portable  becomes 
the  prey  of  the  victor.  "The  taking  of  women,"  to  repeat 
the  forcible  words  of  Spencer,  "is  manifestly  but  a  part  of 
this  process  of  spoiling  the  vanquished."  They  are  "prized 
as  wives,  as  concubines,  as  drudges."* 

Accordingly,  it  is  not  difficult  to  collect  examples  of  the 
actual  capture  of  women  to  serve  as  slaves,  mistresses,  or 
wives  at  the  pleasure  of  the  captor.  Among  the  aboriginal 
American  tribes,  we  are  told,  the  practice  is  originally  found 
in  its  "greatest  perfection."^  From  Cape  Horn  to  Hudson's 
Bay  women  are  regarded  as  legitimate  booty.  The  Horse 
Indians  of  Patagonia  fight  with  each  other,  tribe  against 
tribe,  the  issues  of  victory  in  every  case  being  the  "capture 
of  women  and  the  slaughter  of  men."  The  Patagonian  Oens, 
or  Coin-men,  make  systematic  excursions  every  year  at  the 
time  of  the  "red-leaf"  to  "plunder  Fuegians  of  their  women, 
dogs,  and  arms."*  It  is  even  reported  of  the  Caribs  that 
they  depend  so  much  upon  the  securing  of  foreign  wives  in 
war  that  nowhere  do  the  women  speak  the  same  language  as 
the  men,^  and  a  similar  statement  is  made  concerning  the 
Brazilian  Guaycurtis®  and   some    other    peoples.'       But    in 

iSuch  is  the  view  of  Letoueneau  in  his  able  discussion  of  this  subject:  "Si 
pourtant  I'on  ne  peut  se  dispenser  d'6tudier  sp§cialement  le  mariage  par  capture, 
c'est  qu'on  lui  a  fait  jouer  en  sociologie  un  r5le  capital." — Vivolution  du  mariage, 
110  ff. 

2  Spencer,  Principles  of  Sociology,  I,  650.  ,  3  McLennan,  Studies,  I,  31  ff. 

i  Ibid.,S2 ;  Letoueneau,  op.  cit.,  114 ;  Voyages  of  the  Adventure  and  Beagle,  II,  205. 

5  Adam,  Duparlerdeshommes,2S.;  Martius,  iJec7itez«s<a»ide,  55 ;  Letoueneau, 
op.  cit.,  114;  McLennan,  op.  cit.,  I,  33,  34;  Westeemarck,  Human  Marriage,  383; 
Waitz,  Anthropologic,  III,  355;  Daegun,  Mutterrecht  und  Raubehe,  82.  But  see 
Crawley,  Mystic  Rose,  46-48,  who  believes  the  difference  of  language  is  one  of  the 
results  of  the  fear  of  evil  which  causes  sex-segregation  and  sexual  taboo. 

bMartius,  Ethnologic,  I,  106,  107;  idem,  Rechtszustande,  55,  62. 

7  Hellwald,  Die  mensch.  Familie,  188. 


EiSE  OF  THE  Marriage  Contract  159 

North  America  the  capturing  of  women  for  wives  has  nearly 
disappeared. 

The  practice  of  capturing  or  forcibly  abducting  women, 
though  rare,  exists  among  the  Hottentots  and  elsewhere  in 
Africa.*  It  prevails  throughout  all  Melanesia,  where  abduc- 
tion is  described  as  the  "  primitive  means  of  procuring  wives 
or  rather  slaves,  absolutely  at  the  pleasure  of  the  ravisher."* 
It  has  existed  in  Tasmania,  New  Zealand,  Samoa,  New 
Guinea,  among  the  Fiji  Islanders,  throughout  the  Indian 
Archipelago,  and  to  a  very  limited  extent  in  Australia.*  For 
the  Finnish-Ugrian  and  Turco-Tartaric  peoples  proofs  of 
the  present  or  former  existence  of  the  practice  have  been 
collected.* 

There  are  abundant  evidences  of  woman-capture  de  facto 
among  peoples  of  the  Aryan  stock.  It  existed  among  the 
ancient  Germans;^  and  according  to  Olaus  Magnus,  the 
Scandinavian  nations  were  continuously  at  war  with  one 
another  "propter  raptas  virgines  aut  arripiendas."®  The 
same  writer  says  that  it  "prevailed  in  Muscovy,  Lithuania, 
and  Livonia;"  while  among  the  South  Slavonians  actual 
capture  "was  in  full  force  no  longer  ago  than  the  beginning 
of  the  present  century." '     Such  was  the  case  in  Servia,  where 

1  Letouexeau,  op.  cit.,  113, 114;  Wbsteesiaeck,  op.  cit,  384;  Post,  Afrikanische 
Jurisprudenz,  I,  324  ff. 

2LETOUKNEAU,  Op.  cit.  111. 

3DAEGUN,  op.  cit.,  81;  Westeemaeck,  op.  cif.,385;  FisoN  and  Howitt,  X'ami- 
laroi  andKurnai.,M3S.;  Mathews,  "Australian  Aborigines,"  Jour.  Boy.  Sac,  N.S. 
Wales,  XXIII,  407;  Smyth,  Aborigines  of  Victoria,  11,316;  Spencee  and  Gillen, 
Native  Tribes  of  Cent.  Australia,  102-5,  554-56. 

*See  especially  Scheoedee,  Hochzeitsbrduche ;  Buch,  Die  Wotjaken,  49  ff. ; 
Kohler,  "  Studien,"  ZVR.,  V,  334  ff. ;  and  his  "  Frauenwerbung  und  Frauenranb  im 
flnnischen  Heldenepos,"  ibid.,  VI,  277  ff. 

5DAEGUN,  op.  cit.,  111-40;  Weinhold,  Deutsche  Frauen,  I,  308-10;  Geimm, 
Deutsche  Rechtsalterthiimer,  440;  Westeemaeck,  op.  cit.,  387. 

6  Westeemaeck,  op.  cit.,  387,  citing  Olaus  Magnus,  Historia  de  gentibus  sep- 
tentrionalibus.  Book  X,  chap,  ii,  328,  Cf.  also  McLennan,  op.  cit.,  I,  37;  and  Dae- 
GUN,  op.  cit.,  95-97,  who  gives  the  passage  from  Olaus. 

7  Westeemaeck,  op.  cit.,  387.  Compare  Kovalevsky,  Mod.  Customs  and  Ancient 
Laws  of  Russia,  23,  24. 


160  Matrimonial  Institutions 

it  was  the  custom  either  to  lie  in  wait  for  a  girl  of  a  neigh- 
boring village  to  bear  her  away  as  she  went  out  for  water  or 
to  tend  the  flocks ;  or  else  an  armed  assault  was  made  upon 
her  home.  Murders  were  thus  often  committed;  for  the 
attacking  party  were  resolved  to  suffer  themselves  to  be 
killed  rather  than  give  up  the  girl,  and  all  the  inhabitants 
of  the  girl's  village  took  part  in  the  fray.'  According  to 
Dargun,  the  Slavs  are  as  conspicuous  among  the  Aryans  for 
wife-capture  and  its  survivals  as  are  the  Aryans,  for  the 
same  reason,  among  the  great  divisions  of  mankind.^  It  is 
not  at  all  unlikely  that  the  custom  of  wife-stealing  existed 
among  the  early  Romans,  even  if  the  story  of  the  Sabine 
rape  be  dismissed  as  merely  an  setiological  myth  to  explain 
the  symbol  of  capture  in  the  marriage  ceremony.'  Without 
doubt  it  was  also  common  among  the  primitive  Greeks ;  and 
"even  now,  according  to  Sakellarios,  capture  of  wives  occa- 
sionally occurs  in  Greece."  *  It  is  found  "among  the  abo- 
rigines of  the  Deccan,  and  in  Afghanistan;"^  while  it  was 
known  to  the  ancient  Hindus.  The  code  of  Manu  mentions 
capture  as  one  of  the  eight  legal  forms  of  marriage.  "The 
forcible  abduction  from  home  of  a  maiden  crying  out  and 
weeping,  after  slaying  and  wounding  her  relatives  and  break- 
ing in,  is  called  the  Raksasa  form;"  but  this  is  only  for  the 
military  class.  ^ 

1  Daegun,  op.  cit.,  93, 94;  Scheoedee,  Hochzeitsbrduche,  18;  Kdlischee,  "  Inter- 
communale  Ehe  durch  Raub  und  Kauf,"  ZFE.,  X,  197 ;  DCeingsfeld,  Hochzeitsbuch, 
73,  77. 

2  Daegun,  op.  cit.,  92. 

3 Ibid.,  100-102;  Rossbach,  Die  rdmische  Ehe,  214,  215,  328  ff. ;  Lubbock,  Origin  of 
Civilization,  124;  Scheoedee,  op.  cit.,  16. 

*  Westeemaeck,  op.  cit.,  386,  citing  Zmigeodski,  Die  Mutter  bei  den  VOlkern  des 
arischen  Stammes,  250.  For  the  ancient  Greeks  see  McLennan,  op.  cit.,  I,  44-46; 
Daegun,  op.  ci<.,  99;  Scheoedee,  op.  c?7.,  15,  16;  Rossbach,  op.  cif.,  213.  According 
to  Heuza,  Ehebegriindung,  5;  idem,  Polygamie  und  PelUkat,  79,  94,  95,  capture  of 
women  for  wives  existed  only  in  isolated  cases  among  the  ancient  Hellenes. 

5  McLennan,  op.  cit.,  I,  35,  citing  Campbell's  Indian  Journal  (1864),  400,  and 
Latham's  Descriptive  Ethnology,  II,  215. 

bBuenell  and  Hopkins,  Ordinances  of  Manu,  III,  vss.  33,  26,  pp.  48,  49, 189-91. 
Cf.  McLennan,  op.  cit.,  I,  42,  43;  Daegun,  op.  cit,  93;  Westeemabck,  op.  cit.,  386; 


Rise  of  the  Marriage  Contract  161 

The  capture  of  women  for  wives  is  very  prominent  with 
savage  or  barbarous  peoples  of  the  Semitic  race.  "At  the 
time  of  Mohammed,"  says  Robertson  Smith,  "the  practice 
was  universal"  among  the  Arabs.  "The  immunity  of  women 
in  time  of  war  which  prevails  in  Arabia  now  is  a  modern 
thing;  in  old  warfare  the  procuring  of  captives  both  male 
and  female  was  a  main  object  of  every  expedition,  and  the 
Dlwan  of  the  Hodhail  poets  shews  us  that  there  was  a  regu- 
lar slave  trade  in  Mecca,  supplied  by  the  wars  that  went  on 

among  the  surrounding  tribes Very  commonly  these 

captives  at  once  became  the  wives  or  mistresses  of  their  cap- 
tors— a  practice  which  Mohammed  expressly  recognized, 
though  he  sought  to  modify  some  of  its  more  offensive 
features.  Such  a  connection  does  not  appear  to  have  been, 
properly  speaking,  concubinage."  The  sons  of  a  captive 
woman  suffered  no  legal  disability.  "According  to  Arab 
tradition  the  best  and  stoutest  sons  are  born  of  reluctant 
wives.  And  so  Hatim,  the  Taite,  says: 
'They  did  not  give  us  Taites  their  daughters  in  marriage: 

but  we  wooed  them  against  their  will  with  our  swords. 
'And  with  us  captivity  brought  no  abasement  to  them:   and 

they  neither  toiled  in  making  bread  nor  boiled  the  pot. 
'But  we  commingled  them  with  our  noblest  women:  and  they 

bare  us  fair  sons  white  of  face  [i.  e.,  of  pure  descent]. 
'  How  often  shalt  thou  see  among  us  the  son  of  a  captive 

bride:  who  staunchly  thrusts  through  heroes  when  he 

meets  them  in  the  fight ! "" 

But  nothing  can  exceed  the  brutal  ferocity  with  which 
sometimes  the  people  of  Israel  supplied  themselves  with 

Letoueneau,  X-Vroiufion  d«  martoge,  115 ;  Leist,  Alt-arisches  Jus  Gentium,  126  flf.; 
KOHLEE,  "  Indisches  Ehe-  und  Familienrecht,"  ZVR.,  Ill,  344  ff. ;  Matne,  Hindu  Law 
and  Usage,  76,  77,  80;  Scheoedee,  op.  cit.,  15;  Jolly,  RechtUche  Stellung  der  Frauen 
bei  den  altern  Indern,  19 ;  idem,  Hindu  Law  of  Partition,  73  ff . 

•  RoBEETSON  Smith,  Kinship  and  Marriage,  72-74 ;  cf.  Letoueneau,  op.  cit.,  115, 
116;  KOHLEE,  "  Das  vorislamitische  Recht  der  Araber,"  ZVR.,  VIII,  240,  241,  247. 


162  Matrimonial  Institutions 

women.  The  Hebrew  Bible  contains  various  striking  illus- 
trations of  the  practice.  Contrary  to  law,  which  forbade 
intermarriage  with  the  gentiles,  members  of  the  military 
class  were  allowed  to  marry  foreign  women  taken  in  war.' 
On  one  occasion  the  tribe  of  Benjamin,  or  rather  the  rem- 
nant of  it  which  had  escaped  the  sword  of  Israel,  stood  in 
sore  need  of  wives ;  but  their  brethren  had  sworn  not  to  give 
them  their  daughters  in  marriage,  nor  could  they  legally 
marry  gentile  women.  "The  difficulty  of  procuring  wives 
for  Benjamin — which  Israel  made  its  own  difficulty — was 
solved  by  the  wholesale  slaughter  of  the  inhabitants  of  Jabez- 
Gilead,  whose  population  yielded  400  virgins ;  and  next  by 
the  men  of  Benjamin  enacting  a  rape  of  the  Sabines  for 
themselves,  each  man  seizing  and  carrying  off  one  of  the 
daughters  of  Shiloh  to  be  his  wife,  on  an  occasion  when  the 
women  met  for  a  festival  in  certain  vineyards  near  Bethel."^ 
In  this  case  the  spoils  of  treachery  and  war  were  Jewish  women. 
At  another  time  the  alien  Midianites  were  conquered; 
and  at  the  command  of  Moses  the  women  and  even  the 
male  infants  which  the  soldiers  had  spared  were  deliberately 
slaughtered.  The  virgins  alone,  thirty-two  thousand  in 
number,  were  kept  alive;  and  these  were  divided  among  the 
people  precisely  as  was  the  other  booty,  even  the  priests, 
apparently,  receiving  a  share.' 

It  would  be  a  very  easy  matter  to  produce  further  exam- 
ples of  a  custom  which  appears  as  a  simple  incident  of  war 
and  rapine  at  certain  stagjgs  of  human  progress.  Everywhere 
among  rude  men  we  find  lust  and  physical  force  triumphing 
over  the  weakness  of  woman.     In  the  successful  foray  or  in 

iDeut.  21:  10-14.  Cf.  McLennaij,  op.  cit.,  I,  43,44,  who  calls  attention  to  Sel- 
den's  treatise  on  the  rules  regulating  such  marriages:  De  jure  naturali  et  gentium 
juxta  disciplinam  Ebraeorum,  lib.  v,  cap.  xiii,  fol.  617. 

2  McLennan,  op.  cit.,  I,  46,  47;  Letousneau,  op.  cit.,  115;  <■/.  Judg.,chaps.  20, 21. 

3  Numb.,  chap.  31;  cf.  Letoueneau,  op.  cit.,  115,  116;  Hellwald,  Die  mensch. 
Familie,  183. 


i 


Rise  op  the  Marriage  Contract  163 

the  sack  of  a  town  she  is  treated  merely  as  a  part  of  the 
prey,  becoming  the  slave,  the  concubine,  or  even  the  wife  of 
the  spoiler.  "But  in  these  brutal  practices,"  it  is  patent, 
"there  is  nothing  which  bears  even  a  distant  resemblance 
to  marriage." '  It  is  highly  necessary,  as  Letourneau 
rightly  insists,  to  distinguish  sharply  between  rape  and 
the  marriage  institution.  So-called  marriage  by  capture, 
he  declares,  is  not  a  form  of  marriage  at  all;  "it  is  merely 
a  manner  of  procuring  one  or  several  wives,  whatever 
the  matrimonal  system  in  use."^  As  a  matter  of  fact, 
actual  wife-capture  usually,  perhaps  always,  coexists  with 
regular  forms  of  marriage.  Thus,  as  we  shall  presently 
see,  it  frequently  makes  its  appearance  side  by  side  with 
wife -purchase ;  and  sometimes  the  transition  from  capture 
to  purchase,  as  a  means  of  procuring  wives,  may  be  clearly 
perceived. 

Accordingly  Letourneau  is  of  the  opinion  that  the  name 
"marriage  by  capture"  should  be  reserved  for  legal  and 
pacific  marriages  in  whose  ceremony  the  symbol  of  rape 
appears.*  But  even  this  is  too  broad  a  use  of  the  term,  which 
at  most  can  strictly  be  applied  only  to  the  comparatively 
small  number  of  cases  in  which  the  form  of  capture  is  an 
essential  part  of  the  legal  ceremony.  For  the  symbol  occurs 
in  every  shape  and  in  every  grade  of  significance,  from  the 
brutal  combat  of  the  Australian  savage  to  the  harmless  prank 
of  casting  the  old  shoe  with  which  among  ourselves  the 
wedding  festivities  are  enlivened.  It  exists  in  connection 
with  every  phase  of  development,  from  the  rudest  savagery 
to  the  most  advanced  type  of  Aryan  culture ;  and  it  is  found 
among  the  same  people,  sometimes  in  various  forms,  side 

1  Letourneau,  op.  cit,  116. 

2  Ibid.,  110.  Cf.  the  similar  conclusion  of  BeenhOft,  "  Principien  des  eur.  Fami- 
lienrechts,"  ZVR.,  IX,  392,  393,  394;  and  Gkosse,  Die  Formen  der  Familie,  105  ff. 

3  Letourneau,  op.  cit.,  116, 117  ff. 


164  Matbimonial  Institutions 

by  side  with  actual  capture  or  associated  with  the  most  re- 
fined conception  of  the  marriage  relation.' 

A  very  few  illustrations  of  these  curious  practices,  selected 
from  the  mass  of  material  available,  must  here  suffice.^ 
Sometimes  there  is  a  pretended  abduction  of  the  bride  by 
the  bridegroom.  Among  the  Eskimo  of  Cape  York,  for 
instance,  the  marriage  is  arranged  amicably  by  the  parents 
in  the  infancy  of  the  parties.  Nevertheless  the  wedding 
ceremony  simulates  an  abduction.  The  bride  "is  obliged 
by  the  inexorable  law  of  custom  to  free  herself,  if  possible, 
by  kicking  and  screaming  with  might  and  main,  until  she 
is  safely  landed  in  the  hut  of  her  future  lord,  when  she  gives 
up  the  combat  very  cheerfully,  and  takes  possession  of  her 

1  Daegun's  classification  of  peoples,  among  whom  occurs  so-called  marriage  by 
capture  in  its  various  forms,  will  be  found  useful  (Mutterrecht  unci  Raubehe,  78  ff., 
92, 138,  139).    They  are  divided  into  two  major  classes : 

I.  Peoples  among  whom  wife-capture  is  an  essential  part  of  marriage.  This 
class  comprehends  three  grades  according  to  the  consent  of  the  guardian  {Gewalt- 
haber)  of  the  woman: 

1.  In  the  first  grade  fall  peoples  among  whom  wife-capture  is  customary  with- 
out any  regard  to  the  guardian:  East  Indians,  Slavs,  Germans,  and  various  non- 
Aryan  peoples. 

2.  In  the  second  grade  fall  peoples  among  whom  it  is  the  custom,  after  the 
capture  is  effected,  to  compound  with  the  guardian  by  paying  a  penalty  for  the 
abduction  or  a  price  for  the  woman:  including  Slavs,  Lithuanians,  modern  Greeeks 
of  the  Ionian  Isles,  the  Ossetes  of  the  Caucasus,  the  Germans,  and  certain  non- 
Aryan  peoples. 

3.  In  the  third  grade  are  peoples  among  whom  the  abduction  of  the  bride,  no 
longer  accompanied  by  actual  violence,  is  a  legal  requirement,  though  preceded  by 
consent  of  the  guardian.  Besides  non-Aryan  examples,  here  are  found  the  Romans, 
ancient  Greeks,  Slavs,  possibly  the  Germans. 

II.  Peoples  among  whom  wife-capture  exists  as  a  survival  in  merely  symbolical 
form  and  without  legal  significance.  Examples  among  nearly  all  peoples  in  every 
stage  of  advancement. 

Cf.  the  similar  classification  of  Post,  Familienrecht,  139, 140. 

2  On  the  form  of  capture,  see  Daegun,  op.  cit.,  86-92, 102  ff.,  lllff. ;  Hellwald, 
op.  cit.,  286-305;  Grosse,  Die  Formen  der  Familie,  105 ff.;  Scheoeder,  Hochzeits- 
brauche,  14 ff.;  Kohler,  "Studien,"  ZVS.,  V,  334 ff.;  £ind  for  examples,  Kohler's 
papers  in  2Fi?.,  VII,  371  (New  Guinea);  VI,  333,  339,  399  (Roumauia) ;  IX,  325  (Ben- 
gal) ;  XI,  57  (Azteks),  436  (Kamerun) ;  Rehme,  "  Das  Recht  der  Amaxosa,"  ZVR.,  X, 
38;  Letourneau,  op.  cit.,  117-29;  McLennan,  op.  cit.,  I,  9-21;  Westermaeck,  op. 
c;7.,  382-90;  TosT,  Geschlechtsc;e7iossenschaft,  5i  G.;  Familienrecht,  ISl-^il ;  Staecke, 
Primitive  Family,  212  ff.,  202  ;  and  illustrations  in  Schmidt,  Hochzeiten  in  Thiiringen, 
33,  36,  40;  Wood,  Wedding  Day,  35,  46,  59,  68,  118 ff.,  121-44,  passim;  and  DCeings- 
FELD,  Hochzeitsbuch,  jyassim.. 


I 


Rise  op  the  Marriage  Contract  165 

new  abode."  '  In  the  Ungava  District  the  "sanction  of  the 
parents  is  sometimes  obtained  by  favor  or  else  bought  by 
making  certain  presents  of  skins,  furs,  and  other  valuables." 
If  no  parents  are  living,  the  brothers  and  sisters  must  be 
favorable  to  the  union.  "When  all  obstacles  are  removed 
and  only  the  girl  refuses,  it  is  not  long  before  she  disappears 
mysteriously,  to  remain  out  for  two  or  three  nights  with  her 
best  female  friend,  who  thoroughly  sympathizes  with  her. 
They  return,  and  before  long  she  is  abducted  by  her  lover, 
and  they  remain  away  until  she  proves  to  be  thoroughly 
subjected  to  his  will."^  In  Greenland  a  similar  practice  is 
found.'  It  appears  in  some  Siouan  tribes.*  Among  the 
Canadian  Indians,  after  a  kind  of  civil  marriage  is  solem- 
nized before  the  tribal  chief,  "  the  groom  turns  around, 
makes  an  obeisance,  takes  his  wife  upon  his  back,  and  carries 
her  to  his  tent  amid  the  acclamations  of  the  spectators."  ^ 
Sometimes  the  affair  takes  on  a  more  earnest  character. 
Among  the  Bedouins  of  Sinai  the  bridegroom  seizes  the 
woman  whom  he  has  legally  purchased,  drags  her  into  her 
father's  tent,  lifts  her  violently  struggling  upon  his  camel, 
holds  her  fast  while  he  bears  her  away,  and  finally  pulls  her 
forcibly  into  his  house,  though  her  powerful  resistance  may 

1  Hayes,  The  Open  Polar  Sea,  432;  quoted  by  Lubbock,  Origin  of  Civilization, 
118, 119.    Cf.  also,  Letoueneau,  op.  cit.,  117. 

2 Turner,  "Ethnology  of  the  Ungava  District,"  in  XI.  Rep.  of  Bureau  of  Eth.y 
188.  "I  knew  of  one  instance,"  he  adds,  "when  a  girl  was  tied  to  a  snow  house  for  a 
period  of  two  weeks,  and  not  allowed  to  go  out."  Forcible  abduction  is  referred  to 
by  Murdoch,  "  Point  Barrow  Expedition,"  ibid.,  IX,  412,  413.  The  practice  also 
exists  at  Smith  Sound:  Bessels,  in  Naturalist,  XVIII,  Part  IX;  Murdoch,  op. 
cit.,  411. 

3  Murdoch,  op.  cit.,  411,  citing  Egede's  Greenland. 

*Beckwith,  "Customs  of  the  Dakotahs,"  Rep.  Smith.  Inst.,  1886,  Part  I,  256 
(abduction  with  purchase).  Among  the  Siouan  Indians,  according  to  McGee,  there 
is  no  marriage  by  capture;  but  captive  women  are  sometimes  espoused  and  girls  are 
occasionally  abducted :  XV.  Rep.  of  Bureau  of  Eth.,  178. 

5  Carver,  Travels,  374;  Letourneau,  V&volution  du  mariage,  118;  Lubbock, 
Origin  of  Civilization,  85.  A  similar  custom  exists  among  the  Khands  of  Orissa: 
Lubbock,  op.  cit.,  114;  McLennan,  (Studies,  1, 13-15;  Post,  Familienrecht,  144. 


166  Matrimonial  Institutions 

be  the  occasion  of  serious  wounds/  Especially  interesting 
is  the  form  which  symbolical  abduction  assumes  among  the 
Kamtchadales.  There  the  wooer,  like  Jacob  of  old,  is  ex- 
pected to  earn  his  wife  by  serving  her  parents.  He  takes 
upon  himself  a  good  part  of  the  domestic  labor,  and  the 
term  of  service  sometimes  lasts  for  a  number  of  years. 
"  This  is  surely  a  singular  prelude  to  a  forcible  marriage  by 
capture;  nevertheless,  when  the  period  of  novitiate  has  ex- 
pired, the  future  spouse  must  violently  and  publicly  triumph 
over  the  resistance  of  his  betrothed.  She  is  cuirassed  with 
garments,  thick  and  superimposed,  with  straps  and  with 
strings.  Moreover,  she  is  guarded  and  defended  by  the 
women  of  her  yourt.  The  marriage  is  not  definitely  con- 
cluded until  the  bridegroom,  surmounting  all  these  obstacles, 
succeeds  in  perpetrating  upon  his  intended,  so  well  protected, 
a  sort  of  outrage  upon  her  modesty,  which  she  ought  to 
confess  by  crying  out  ni  ni  in  a  plaintive  voice.  But  the 
women  and  the  maidens  of  the  guard  fall  upon  the  assailant 
with  loud  cries  and  heavy  blows,  pulling  his  hair,  scratching 
his  face,  and  sometimes  throwing  him  over.  Victory  often 
requires  repeated  assaults,  sometimes  days  of  combat.  Only 
when  at  last  it  is  won  and  the  bride  yields  herself  is  the 
marriage  concluded.  The  night  is  then  passed  in  the  yourt 
of  the  wife,  who  is  conducted  to  the  husband's  house  only 
on  the  following  day."^  The  sham  contest  takes  a  some- 
what different  form,  according  to  Bancroft,  among  the  Mos- 
quito Indians  of  Central  America.  "At  noon  the  villagers 
proceed  to  the  home  of  the  bridegroom,"  whom  they  accom- 
pany to  the  "house  of   the  bride  where    the  young  man 

1  DABGtJN,  Mutterrecht  und  Raubehe,  88,  who  names  many  other  peoples  among 
whom  the  like  custom  prevails.  Cf.  Lubbock,  op.  cit.,  123,  113  £E. ;  Btjeckhaedt, 
Notes  on  the  Beduins  and  Wahabys,  I,  263, 108, 234.  Cf.  Kohlee,  "Das  vorislamitische 
Eecht  der  Araber,"  ZVE.,  VIII,  247,  248. 

2LETO0ENEAU,  op.  cit.,  118,  119;  cf.  Lubbock,  op.  cf<.,  117, 118.  In  Kamchatka, 
according  to  Mullee,  Deso iption  de  toutes  les  nations  de  l^ empire  de  Russie,  II, 
89,  "attraper  une  fille  est  leur  expression  pour  dire  marier."— Lubbock,  118. 


Rise  of  the  Marriage  Contract  1G7 

seats  himself  before  the  closed  entrance  on  a  bundle  of  pres- 
ents intended  for  the  bride.  The  father  raps  at  the  door 
which  is  partly  opened  by  an  old  woman  who  asks  his  busi- 
ness, but  the  reply  does  not  seem  satisfactory,  for  the  door 
is  slammed  in  his  face."  With  great  difficulty,  and  only 
after  entreaties,  music,  and  presents  have  been  tried,  is  the 
door  opened,  "revealing  the  bride  arrayed  in  her  prettiest, 
seated  on  a  crickery,  in  the  remotest  corner.  While  all  are 
absorbed  in  examining  the  presents,  the  bridegroom  dashes 
in,  shoulders  the  girl  like  a  sack,  and  trots  ofp  for  the  mystic 
circle,"  within  which  a  hut  has  already  been  erected.  This 
hut  he  reaches,  urged  on  by  the  frantic  cries  of  the  women, 
before  the  crowd  can  rescue  her.  "The  females,  who  can- 
not pass  the  ring,  stand  outside  giving  vent  to  their  despair- 
ing shrieks,  while  the  men  squat  within  the  circle  in  rows, 

facing  outward After  dark  the  crowd  proceeds  with 

lighted  torches  to  the  hut,  which  is  torn  down,  disclosing 
the  married  pair  sitting  demurely  side  by  side.  The  hus- 
band shoulders  his  new  baggage  and  is  escorted  to  his 
home." '  On  the  other  hand,  instead  of  abduction,  the  simu- 
lated flight  of  the  woman  is  of  frequent  occurrence.  Some- 
times she  seeks  refuge  in  the  house  of  a  relative,  or  conceals 
herself  in  the  woods,  whence  she  can  only  be  brought  back 
with  more  or  less  violence.^  Thus  in  southern  California, 
according  to  Bancroft,  "where  an  Oleepa  lover  wishes  to 
marry,  he  first  obtains  permission  from  the  parents.  Tlie 
damsel  then  flies  and  conceals  herself ;  the  lover  searches 
for  her,  and  should  he  succeed  in  finding  her  twice  out  of 
three  times  she  belongs  to  him.  Should  he  be  unsuccessful 
he  waits  a  few  weeks,  and  then  repeats  the  performance.  If 
she  again  elude  his  search,  the  matter  is  decided  against 

1  Bancroft,  Native  Races,  I,  732,  733.  For  further  examples  of  "ceremonial" 
capture  or  abduction,  see  Peal,,  "On  the  'Morong,'"  Jour.  Anth.  Inst.,  XXII,  255; 
Klemm,  Kulturgeschichte,  IV,  27  (Tscherkessen). 

2  Daegun,  Mutterrecht  und  Raubehe,  88,  89, 108  ff. ;  Lubbock,  op.  cit.,  118-20. 


168  Matrimonial  Institutions 

him."'  By  the  Siouan  peoples  elopement  is  "considered 
undignified,  and  different  terms  are  applied  to  a  marriage 
by  elopement  and  one  by  parental  consent."^  Nevertheless, 
as  among  the  Omahas,  the  custom  is  sanctioned.  Some- 
times, according  to  Dawson,  "  a  man  elopes  with  a  woman. 
Her  kindred  have  no  cause  for  anger"  if  he  takes  her  as  his 
wife.  "  Should  a  man  get  angry  because  his  single  daughter, 
sister,  or  niece  had  eloped,  the  other  Omahas  would  talk 
about  him,  saying,  'that  man  is  angry  on  account  of  the 
elopement  of  his  daughter !'  They  would  ridicule  him 
for  his  behavior.  La  Fl^che  knew  of  but  one  case,  and  that 
a  recent  one,  in  which  a  man  showed  anger  on  such  an  occa- 
sion. But  if  the  woman  had  been  taken  from  her  husband 
by  another  man,  her  kindred  had  a  right  to  be  angry. 
"Whether  the  woman  belongs  to  the  same  tribe  or  to  another 
the  man  can  elope  with  her  if  she  consents.  The  Omahas 
cannot  understand  how  marriage  by  capture  could  take  place, 
as  the  woman  would  be  sure  to  alarm  her  people  by  her 
cries."  ^ 

Among  the  Kalmucks  both  abduction  and  pretended 
flight  are  found.  According  to  De  Hell,  among  the  noble 
or  princely  class,  after  the  bridegroom  has  arranged  with 
the  father  for  the  price  of  the  girl,  he  "  sets  out  on  horse- 
back, accompanied  by  the  chief  nobles  of  the  horde  to  which 
he  belongs,  to  carry  her  off."  A  "sham  resistance  is  always 
made  by  the  people  of  her  camp,  in  spite  of  which  she  fails 
not  to  be  borne  away  on  a  richly  caparisoned  horse,  with 
loud  shouts  and  feux  de  joie^  *  A  different  custom  is  de- 
scribed by  Dr.  Clarke.     After  stipulation  of  the  price  the 

1  Bancroft,  op.  cit,  I,  389. 

2 Dorset,  "Siouan  Sociology,"  XV.  Rep.  of  Bureau  of  Eth.,  242.  Compare 
McGee,  "Siouan  Indians,"  ibid.,  178,  who  says  elopements  are  sometimes  sanctioned. 

3  DOESEY,  "Omaha  Sociology,"  ///.  Rep.  of  Bureau  of  Eth.,  260,  261. 

■iXaviee  Hommaiee  de  Hell,  Travels  in  the  Steppes  of  the  Caspian  Sea  (Lon- 
don, 1847),  259;  cited  by  McLennan,  Studies,  1, 15.    Cf.  Letoueneau,  op.  cit..  119. 


Rise  op  the  Marriage  Contract  169 

"ceremony  of  marriage  among  the  Kalmucks  is  performed 
on  horseback.  A  girl  is  first  mounted,  who  rides  off  in  full 
speed.  Her  lover  pursues:  if  he  overtakes  her,  she  becomes 
his  wife,  and  the  marriage  is  consummated  on  the  spot." 
But  the  race  sometimes  has  a  different  ending.  "We  were 
assured,"  continues  Clarke,  "that  no  instance  occurs  of  a 
Kalmuck  girl  being  thus  caught,  unless  she  have  a  par- 
tiality to  the  pursuer.  If  she  dislikes  him  she  rides,  to 
use  the  language  of  English  sportsmen,  '  neck  or  nought,' 
until  she  has  completely  effected  her  escape,  or  until  her 
pursuer's  horse  becomes  exhausted,  leaving  her  at  liberty 
to  return,  and  to  be  afterwards  chased  by  some  more  favored 
admirer." ' 

Not  less  interesting  than  the  forms  of  flight  and  abduc- 
tion is  the  custom  of  elopement,  implying  the  connivance  or 
consent  of  the  woman.  In  Tasmania^  and  in  Australia, 
especially  among  the  Kurnai,  etiquette  requires  that  the 
lover  should  run  away  with  his  betrothed.  Contrary  to  the 
common  opinion,  capture  of  women  seldom  occurs  in  Aus- 
tralia, and  then  only  as  the  result  of  war  between  hostile 
tribes.^     "The  young  Kurnai,"  however,  "could  acquire  a 

1  Claeke,  Travels,  I,  4;i3;  McLennan,  op.  cit.,  1, 15, 16.  Cf.  Koehne,  "Das  Recht 
der  Kalmucken,"  ZVR.,JX,  462;  Daegun,  op.  cit.,  89;  Lubbock,  op.  cit.,  116, 117. 

With  the  Kalmuck  case  may  be  compared  the  following,  communicated  by 
Dawson:  "One  day  in  1872,  when  the  writer  was  on  the  Ponka  Reservation  in 
Dakota,  he  noticed  several  young  men  on  horseback,  who  were  waiting  for  a  young 
girl  to  leave  the  mission  house.  He  learned  that  they  were  her  suitors,  and  that 
they  intended  to  run  a  race  with  her  after  they  dismounted.  Whoever  could  catch 
her  would  marry  her ;  but  she  would  take  care  not  to  let  the  wrong  one  catch  her. 
La  Flfeche  and  Two  Crows  maintain  that  this  is  not  a  regular  Ponka  custom,  and 
they  are  sure  that  the  girl  (a  widow)  must  have  been  a  'mickeda,'  or  'dissolute 
woman.'  "—Dawson,  "Omaha  Sociology,"  in  III.  Rep.  of  Bureau  of  Eth.,  260. 

2  BoNWiCK,  Daily  Life  and  Origin  of  the  Tasmanians,  65,  66. 

3  McLennan,  op.  cit,  I,  38  £F.,  maintains  the  prevalence  of  capture  de  facto, 
especially  in  the  form  of  violent  abduction ;  and  he  is  followed  by  Lubbock,  op.  cit., 
111-13.  According  to  FisON  AND  Howitt,  Kamilaroi  and  Kurnai,  31311.,  women  are 
sometimes  (1)  stolen  from  kindred  groups;  (2)  seized  in  war  between  related  clans; 
or  (3)  captured  from  alien  tribes,  elopement  being  of  more  frequent,  and  marriage 
by  exchange  or  gift  of  less  frequent,  occurrence.  But  it  should  be  remembered  that 
elopement  and  purchase  often  go  together.  Me.  Cube,  The  Australian  Race,  1, 108, 
states  that  women  are  very  seldom  captunjd  from  other  tribes,  the  practice  being 


170  Matrimonial  Institutions 

wife  in  one  way  only.  He  must  run  away  with  her.  Native 
marriages  might  be  brought  about  in  various  ways.  If  the 
young  man  was  so  fortunate  as  to  have  an  unmarried  sister, 
and  to  have  a  friend  who  also  had  an  unmarried  sister,  they 
might  arrange  with  the  girls  to  run  off  together;  or  he 
might  make  his  arrangements  with  some  eligible  girl  whom 
he  fancied  and  who  fancied  him ;  or  a  girl,  if  she  fancied  a 
young  man,  might  send  him  a  secret  message  asking,  'Will 
you  find  me  some  food?'  And  this  was  understood  to  be  a 
proposal.  But  in  every  such  case  it  was  essential  to  success 
that  the  parents  of  the  bride  should  be  utterly  ignorant  of 
what  was  about  to  take  place.  It  was  no  use  his  asking  for 
a  wife  excepting  under  most  exceptional  circumstances,  for 
he  could  only  acquire  one  in  the  usual  manner,  and  that 
was  by  running  off  with  her.'"  According  to  Mr.  Howitt, 
marriage  by  elopement  exists  among  many  other  Australian 
tribes.  It  seems  to  be  the  favorite  method  when  the  parents 
of  the  girl  are  opposed  to  the  match.  In  that  case,  the  girl  is 
sometimes  severely  punished ;  or  the  man  is  supposed  to  retain 
her  only  as  the  result  of  a  successful  combat  with  her  friends, 
which  may  prove  to  be  something  more  than  a  sham  combat.^ 
The  examples  thus  far  presented  have  all  been  selected 
from  the  matrimonial  customs  of  non-Aryan  peoples ;  but  the 
symbol  of  capture,  in  a  great  variety  of  forms  and  combina- 
tions, may  also  be  found  in  every  subdivision  of  the  Aryan 

discouraged  for  fear  of  stirring  up  incessant  attacks.    Cf.  Westeemaeck,  Human 
Marriage,  384,  385;  and  Kohlee,  "Das  Recht  der  Australneger,"  ZVR.,  VII,  350  ff. 

Spencee  and  Gillen,  Native  Tribes  of  Cent.  Axtstralia,  104,  105,  554-60,  name 
four  methods  of  obtaining  wives  among  these  aborigines :  (1)  charming  by  means  of 
magic;  (2)  capture,  being  of  "much  rarer  occurrence;"  (3)  elopement,  a  form 
"intermediate"  between  the  method  of  charming  and  that  of  capture,  often  leading 
to  bloody  fights;  (4)  the  custom  "in  accordance  with  which  every  woman  in  the  tribe 
is  made  Tualcha  mura  [prospective  mother-in-law]  with  some  man.  This  relation 
is  entered  into  while  the  male  and  female  are  in  tender  years;  so  that  the  boy  is 
thus  betrothed  to  the  prospective,  unborn  daughter  of  his  Tualcha  mura.  This  is 
the  usual  method  of  obtaining  a  wife  in  the  Arunta  and  Ilpirra  tribes. 

1  FisoN  AND  Howitt,  op.  cit.,  200. 

'^Ibid.,  348-55.    Cf.  Dawson,  Australian  Aborigines,  34. 


Rise  op  the  Marriage  Contract  171 

race.     It  appears  in   the   marriage   ceremonies  of   Sparta, 
Crete,  and  among  other  Hellenes.'     The  nuptial  celebration 
of  the  Romans  was  characterized  throughout  by  the  show  of 
force.     For  this  reason  they  hesitated  to  hold  weddings  on 
religious  days,  lest  these  should  be  desecrated  by  the  seem- 
ing violence  done  to  the  bride.^     With  the  rising  of  the 
evening  star  took  place   the  domum  deductio,  or  carrying 
home,  of  the  woman.^     The  girl  fled  to  the  lap  of  her  mother, 
whence  she  was  dragged  forcibly  away  by  the  bridegroom  and 
his  friends  who  rushed  noisily  in,*    On  the  way  she  held  back, 
weeping  and  struggling,  while  her  attendants  sang  hymeneal 
songs,  not  always  the  most  refined  in  character.     Thus  in 
his  nuptial  hymn  Catullus  has  the  choir  of  maidens  exclaim; 
"Say,  Hesper,  say,  what  fire  of  all  that  shine 
In  Heaven's  great  vault  more  cruel  is  than  thine? 
Who  from  the  mother's  arms  her  child  can  tear — 
The  child  that  clasps  her  mother  in  despair; 
And  to  the  youth,  whose  blood  is  all  aflame, 
Consigns  the  virgin  sinking  in  her  shame! 
When  towns  are  sacked,  what  cruelty  more  drear,  "^ 

iDiONYSius,  II,  30;  Plutarch,  Lives,  I,  133,  134  (Lycurgus) ;  Herodotus, 
Book  VI,  65;  Rawlinson,  III,  377;  Muller,  Doric  Races,  II,  278;  Smith,  Diet,  of 
Ant.,  II,  130-38 ;  Dargun,  op.  cit.,  99, 100;  McLennan,  op.  cit.,  1, 44  ff.,  12  ff. ;  Lubbock, 
op.  cit.,  81. 

2  "Feriis  autem  vim  cuiquam  fieri  piaculare  est,  ideo  tunc  vitantur  nuptiae,  in 
quibus  vis  fieri  virginibus  videtur."— Macrobius,  Sat,  1, 15 ;  cf.  Dakgun,  op.  cit.,  100. 

3  The  domum.  deductio  was  the  second  act  in  the  patrician  marriage  ceremony  of 
confarreatio,  and  in  this  case  it  appears  to  have  been  a  necessary  form.  But  it  was 
probably  also  observed,  as  a  nuptial  custom,  in  connection  with  plebeian  free  mar- 
riages as  well  as  in  the  coemptio:  Rossbach,  Die  rdmische  Ehe,  92  if.,  116, 145, 155,328 
ff. ;  idem.,  Hochzeits-  und  Ehedenkmdler,  39-118.  Cf.  Maequardt,  Privat-Lehen,  I,  38; 
Smith,  Diet,  of  Ant,  II,  142;  Fustel  de  Coulanges,  Ancient  City,  55  S. ;  Dargun, 
op.  cit,  100  ff. 

*"  Rapi  simulatur  virgo  exgremio  matris  aut  si  ea  non  est,  ex  proxima  necessi- 
tudine,  cum  ad  virum  trahitur,  quod  videlicet  ea  res  feliciter  Romulo  cessit." — 
Festus,  De  verb,  si.gr.,  s.  v.  Rapi. 

5 Catullus,  Carmina,  LXII,  20-24;  Martin's  translation,  89.  See  also  Ca- 
tullus, LVI  and  LXI,  for  other  allusions  to  Roman  wedding  customs;  and  com- 
pare Ovid,  Metamorphoses,  IV,  75-78;  Virgil,  Eclogues,  VIII,  30,  and  Servius,  Com- 
mcntaria,  ad  hoc  loc.    In  general,  Rossbach, op.  cit.,  328  ff.,  359 ;  Maequardt,  op.  cit.. 


172  Matrimonial  Institutions 

At  the  door  the  bride  makes  a  last  effort  to  resist ;  but  she 
is  lifted  forcibly  over  the  threshold,  and  even  in  the  house 
she  is  held  fast  by  the  arms,  until  at  last  she  is  fully  initiated 
into  the  sacred  rites  of  the  bridegroom's  house.'  It  is  note- 
worthy that  the  custom  of  dragging  the  bride  into  the 
husband's  house,  or  of  lifting  her  over  the  threshold,  exists 
even  now  in  many  places.  It  appears  in  Africa ;  among  the 
Ests,  Kalmucks,  and  Bedouins;  the  Indians  of  southern  Cali- 
fornia, and  elsewhere  in  North  America.^  In  "China,  when 
the  bridal  procession  reaches  the  bridegroom's  house,  the 
bride  is  carried  into  the  house  by  a  matron,  and  lifted  over 
a  pan  of  charcoal  at  the  door."^ 

The  symbol  of  capture  is  especially  prominent  in  Celtic 
song  and  custom.  As  in  the  German  epics,  it  was  not 
thought  unseemly  for  the  daughter  to  marry  the  hero  who 
had  slain   her  father.*     "According  to  tradition  the  Picts 

1,37-55;  FeiedlIndee,  Sitten^esc/u'c/iie,  I,  463-66;  Bouche-Leclekcq,  7nsfJ<M<£ona 
romaines,  468  S. ;  Beckee,  Gallus,  160,  161, 153-81 ;  Plutaech,  Lives,  I,  69-73  (Romu- 
lus) ;  Smith,  op.  cit.,  II,  138  ff .,  142  ff . ;  Letoueneau,  op.  cit.,  124, 125 ;  Westekmaeck, 
op.  cit.,  386;  Daegun,  op.  cit.,  100  ff. ;  McLennan,  op.  cit.,  1, 13. 

1  Daegun,  op.  cit.,  101;  Fustel  de  Coulanges,  op.  cit.,  56;  Rossbach,  op. 
cit,  359. 

2  Daegun,  op.  cit.,  88;  Scheoedee,  Hochzeitsbrauche,  88  ff.;  Lubbock,  Origin  of 
Civilization,  85,  86, 122, 123;  Post,  Geschlechtsgenossenschaft,  60;  McLennan,  op.  cit., 
1, 19.  Banceoft  gives  an  interesting  description  of  the  custom  among  the  Califor- 
nia Indians:  "  On  the  appointed  day  the  girl,  decked  in  all  her  finery,  and  accom- 
panied by  her  family  and  relations,  was  carried  in  the  arms  of  one  of  her  kinsfolk 

toward  the  house  of  her  lover The  party  was  met  half-way  by  a  deputation 

from  the  bridegroom,  one  of  whom  now  took  the  young  woman  in  his  arms  and 
carried  her  to  the  house  of  her  husband."— iVaiiue  Races,  I,  411. 

3  Lubbock,  op.  ci*.,  86;  Davis,  The  Chinese,  1, 285;  Letoueneau,  pp.  cit.,  144, 145; 
Post,  op.  cit.,  57. 

Daegun,  op.  cit.,  88,  91,  says,  besides  the  custom  just  mentioned,  there  is  but  one 
other  survival  of  wife-capture  among  the  Chinese  — the  forbidding  of  friendly  inter- 
course between  the  newly  wedded  husband  and  the  mother-in-law.  Jameson, 
China  Review,  X,  95,  thinks  that  in  China  there  is  no  trace  of  capture;  but  Kohlee, 
in  ZVR.,  VI,  405,  406,  gives  an  example  of  the  alleged  symbol  of  rape  among  the 
Chinese.  Cf.  Neumann,  Asiatische  Studien,  1, 112;  and  Westeemaeck,  Human  Mar- 
riage, 387. 

Aeaki,  Japanisches  Eheschliessungsrecht,  9, 10,  denies  the  former  existence  in 
Japan  of  purchase  or  capture  of  wives. 

1  Daegun,  op.  cit.,  102,  who  refers  to  the  legend  of  Launcelot  and  the  song  of 
Laudine  and  Iwein:  Qeevinus,  Geschichte  der  deutschen  Dichtung,  5th  ed.,  I,  447,  449. 
For  the  same  practice  in  German  songs  and  epics  see  Daegun,  op.  cit.,  119. 


Rise  of  the  Maekiage  Contract  173 

robbed  the  Gaels  of  their  women,  so  that  the  latter  were 
compelled  to  intermarry  with  aboriginal  inhabitants  of  the 
land."'  Near  the  beginning  of  last  century  the  following 
marriage  ceremony  was  customary  in  Wales :  "  On  the  morn- 
ing of  the  wedding  day  the  bridegroom,  accompanied  by 
his  friends  on  horseback,  demands  the  bride.  Her  friends, 
who  are  likewise  on  horseback,  give  a  positive  refusal,  upon 
which  a  mock  scuffle  ensues."  The  bride,  mounted  behind 
her  nearest  kinsman,  is  carried  off  and  is  pursued  by  the 
bridegroom  and  his  friends,  with  loud  shouts.  It  is  not 
uncommon  on  such  an  occasion  to  see  two  or  three  hundred 
sturdy  Cambro- Britons  riding  at  full  speed,  crossing  and 
jostling,  to  the  no  small  amusement  of  the  spectators. 
When  they  have  fatigued  themselves  and  their  horses,  the 
bridegroom  is  supposed  to  overtake  his  bride.  He  leads  her 
away  in  triumph,  and  the  scene  is  concluded  with  feasting 
and  festivity."^  Still  more  real  is  the  sham  contest  in  Ire- 
land. As  late  as  the  middle  of  last  century,  in  mountain 
districts,  the  bridegroom  "was  compelled  in  honor,  to  run 
off  with  his  betrothed,  even  when  there  was  not  the  least 
need  of  it."^  On  the  day  of  home-bringing,  after  the  pur- 
chase-contract had  been  concluded,  "the  bridegroom  and 
his  friends  rode  out  to  meet  the  bride  and  her  friends,  at 
the  place  where  the  contract  was  made.  Being  come  near 
each  other  the  custom  was  of  old  to  cast  short  darts  at  the 
company  that  attended  the  bride,  but  at  such  distance  that 
seldom  any  hurt  ensued.  Yet  it  is  not  out  of  memory  of 
man  that  the  Lord  of  Hoath  on  such  an  occasion  lost  an 
eye."* 

1  McLennan,  op.  cit.,  I,  68;  Daegun,  op.  cit.,  102. 

2LoedKame9,  History  of  Man  (Edinburgh,  1807),  I,  449:  McLennan,  op.  cit.,  I, 
18;  Lubbock,  op.  cit.,  125 ;  Dakgun,  Mutterrecht  und  Raubehe,  103. 

3  Daegtjn,  op.  cit,  102,  103. 

*  PiEES,  Description  of  Westmeath,  quoted  by  Lubbock,  26, 27 ;  see  also  Dargun, 
op.  cit.,  103. 


174  Matrimonial  Institutions 

A  custom,  almost  identical  with  that  last  mentioned,  pre- 
vails in  the  Punjab;'  and  in  many  parts  of  India  the  sham 
contest  and  the  pretended  abduction  appear.^  But  nowhere 
are  the  symbols  of  capture  found  in  such  wonderful  variety 
and  profusion  as  in  Germany  and  Slavonic  lands.  The  mass 
of  illustration  presented  by  Dargun  is  almost  bewildering 
for  its  richness.^  Every  form  and  type  of  ceremonial  cap- 
ture is  there  represented.  Elopement,  the  sham  combat, 
abduction  by  an  armed  band,  is  the  regular  order  of  the 
wedding  day  in  every  country  of  the  Slavonic  race.  In 
Germany,  besides  these  practices,  reminiscences  of  capture 
are  found  in  a  great  variety  of  pranks  and  fantastic  sports. 
The  bride  is  concealed  from  her  lover  before  the  wedding; 
or,  after  it  takes  place,  she  is  stolen  and  concealed  by  the 
young  people  of  the  village.  The  bridegroom  is  hindered 
from  entering  the  home  of  his  intended  on  the  wedding  day ; 
or  he  finds  his  way  barred  to  or  from  the  church,  and  is  per- 
mitted to  proceed  only  after  paying  a  fine  or  treating  the 
crowd.*  Sometimes,  as  in  Sweden,  the  bride  is  stolen  by 
her  lover  and  hidden  away.^  In  upper  Bavaria,  on  the  day 
of  the  wedding,  she  clothes  herself  in  mourning,  black  or 
violet;®  and  the  practice  of  covering  or  veiling  her  head  is  as 
familiar  in  Germany  as  it  was  in  ancient  Kome.^  "To  veil 
the  woman,"  quBn  liugan,  is  the  Gothic  name  for  marriage; 

1  Lubbock,  op.  cit,,  115, 116. 

2  Post,  Geschlechtsgenossenschaft,5S;  Lubbock,  op.  rt^.,  114-16;  McLennan,  op. 
cit.,  I,  13-15.  For  symbols  of  rape  in  India  see  Kohlek,  in  ZFiJ.,VIII,  91, 114  (Dek- 
kan) ;  IX,  325  (Bengal) ;  X,  74-77  (Bombay). 

3  For  the  Slavs  see  Daegun,  op.  cii.,  103  ff. ;  and  for  the  Germans,  iftid.,  111-40; 
DOeingsfeld,  Hochzeitsbuch,  22  ff.,  65  fE.,  113  ff.,  passim. 

♦  This  custom,  in  some  form,  prevails  throughout  Europe :  Dargun,  op.  cit, 
107  ff.,  135  ff.    On  all  these  practices  compare  Scheoeder,  Hochzeitsbrauche,  57  ff. 

5  "  In  Schweden  wird  die  Braut  an  manchen  Orten  vom  Brautigam  und  seinen 
Gehilfen  tief  im  Heu  versteckt  gefunden."— Dargun,  op.  cit.,  132;  D(Jeing8FEI,d, 
Hochzeitsbuch,  9. 

6  Weinhold,  Deutsche  Frauen,  I,  389;  cf.  Dargun,  op.  cit.,  130. 
'  Dargun,  op.  cit.,  130, 131 ;  cf.  Scheoeder,  op.  cit.,  72-78. 


Rise  of  the  Marriage  Contract  175 

in  Lorraine  it  is  called  Brautjagd,  or  "bride-hunt;"  while 
Brauttauf,  or  "bride-race,"  for  the  entire  nuptial  celebration 
is  a  common  designation  in  German  lands.'  The  original 
meaning  of  Brautlauf  is  probably  revealed  in  the  existing 
custom  of  chasing  the  bride.  Thus,  in  Altmark,  after  the 
wedding  feast,  followed  by  a  dance,  a  runaway  match  takes 
place  between  the  newly  married  pair.  "Two  lusty  young 
fellows  take  the  girl  between  them,  the  bridegroom  gives  her 
a  'start,'  and  the  race  begins.  If  the  lover  does  not  succeed 
in  overtaking  her,  he  must  look  out  for  the  gibes  of  the 
crowd."' 

As  illustration  of  social  custom  and  mental  attitude  the 
extraordinary  prevalence  of  the  so-called  symbol  of  capture 
is  undoubtedly  a  fact  of  unusual  interest ;  and  it  constitutes 
an  important  chapter  in  the  history  of  marriage.  But  it  does 
not  follow,  as  a  matter  of  course,  that  the  symbol  must 
necessarily  be  regarded  as  a  survival  of  actual  capture.  It  is 
scarcely  credible  that  its  origin  can  be  traced  to  a  single 
source.  On  the  contrary,  it  is  far  more  likely  that  in  dif- 
ferent places,  or  even  in  the  same  place,  it  takes  its  rise  in  a 
variety  of  causes,  though  these  may  be  less  simple  in 
character.  Thus,  in  spite  of  the  protest  of  McLennan,"^  who 
asserts  that  "no  case  can  be  cited  of  a  primitive  people 
among  whom  the  seizing  of  brides  is  rendered  necessary  by 

1  In  the  Brautlauf  "eine  Beziehung  auf  den  Frauenraub  ist  anzunehmen,  eben- 
so  wie  beim  analogen  Ausdruck  '  Brautjagd '  in  Lothringen,  boim  altnordischen 
'qvftnfang,  konfang,  verfang,'  d.  h.  Frauenfang  fur  Ehe  und  beim  gothischen  'qu6n 
liugan'  das  Weib  verhttllen,  verschleiern,  binden  fur  Heiraten,  sowie  beim  gleich- 
bedeutenden  mittelhochdeutschen :  'der  briute  binden. '  "  Dargun,  op.  cit.,  130;  cf. 
Schmidt,  Hochzeiten  in  ThUringen,  40;  DOringsfeld,  op.  cit..,  155  ff. 

2  Dargun,  op.  cit.,  130, 131.  Weinhold,  op.  cit.,  1, 384  ff.,  gives  many  examples  of 
similar  wedding  customs,  and  Schmidt,  Jus  primae  noctis,  126-46,  discusses  the 
Brautlauf  and  like  practices,  citing  the  sources  in  detail.  Cf.  Geimm,  Rechtsalter- 
thUmer,  419 ;  idem,  Wdrterbuch,  II,  336  flf. 

3  McLennan,  op.  cit.,  I,  10,  criticises  MCller,  Doric  Races,  Book  IV,  chap,  iv, 
sec.  2,  who  accounts  for  the  sign  of  rape  in  the  Spartan  ceremony  on  the  ground  of 
coyness.  See  also  Rossbach,  Die  rdmische  Ehe,  328,  who  holds  the  same  view;  and 
Rawlinson's  notes,  Herodotus,  Book  VI,  65;  Finck,  Primitive  Love,  123  ff.,  who 
rejects  Spencer's  theory. 


176  Matrimonial  Institutions 

maidenly  coyness,"  it  is  highly  probable  that  the  real  or  as- 
sumed modesty  of  the  woman  has  exerted  a  strong  influence, 
here  and  there,  in  producing  the  form  of  capture.'  Some- 
times the  simpler  explanation  of  Starcke  may  suffice.  Cere- 
monial capture,  he  declares,  merely  represents  the  "sorrow 
of  the  bride  on  leaving  her  former  home ;  her  close  depen- 
dance  on  her  family  is  expressed  by  her  lamentation."^ 
Again  the  symbol  may  appear  as  the  sign  of  the  subjection 
or  subordination  of  the  wife ;  for  many  of  the  so-called  minor 
survivals  seem  to  have  this  end  in  view.  In  a  society  where 
woman,  on  occasion,  is  seized  in  the  bloody  foray;  where, 
often,  she  is  bought  like  a  beast  of  burden ;  and  where,  gen- 
erally, she  is  exposed  to  the  cruelty  and  brutality  of  her 
master,  it  is  not  surprising  that  the  token  of  the  wife's  hu- 
mility should  find  its  way  into  the  ceremony  of  marriage.^ 
Furthermore  the  suggestion  of  Letourneau  is  worthy  of 
special  consideration.  The  symbol  of  rape,  he  holds,  is  first 
of  all  a  "mental  survival;"  a  "tradition"  of  an  epoch  more 
or  less  remote  when  violence  was  held  in  high  esteem  and 
when  it  was  glorious  to  procure  slaves  by  force  of  arms.  The 
period  of  rapine  may  have  passed  away,  but  its  spirit  lingers. 
Men  love  to  figure  in  the  ceremonial  of  marriage  the  abduc- 

1  Of  course,  Spencer's  reply  to  McLennan,  already  mentioned,  is  most  impor- 
tant ;  and  his  argument  has  not  been  overthrown :  Principles  of  Sociology,  I,  652-56. 
Cf.  Westeemaeck,  Human  Marriage,  388,  who  favors  Spencer's  view;  and  Geosse, 
Die  For  men  der  Familie,  107,  108,  who  accepts  coyness  as  a  partial  explanation, 
though  he  believes  that  the  symbol  of  capture  may  also  be  due  in  some  cases  to  the 
honor  of  having  wives  taken  in  war,  while  frequently  it  may  represent  in  a  realistic 
■way  the  release  of  the  woman  from  paternal  authority  and  her  subjection  to  the 
husband's  power.  Hellwald,  Die  mensch.  Familie,  287  ff.,  rejects  Spencer's  expla- 
nation, regarding  the  forms  of  ceremonial  rape  as  survivals  of  real  capture,  marking 
the  transition  to  wife-purchase  and  the  paternal  system;  and  Lippeet,  Kultur- 
geschichte,  II,  86  ff.,  92  £f.,  holds  a  similar  position. 

2  Stakcke,  Primitive  Family,  218,  262.  He  refers  especially  to  the  joint  or  com- 
munal family —  the  "alpha  and  the  omega"  of  the  community.  But  his  explana- 
tion can  hardly  be  accepted  as  sufficient  in  all  cases. 

3  Cf.  Letoueneau,  L^Svolution  du  mariage,  117, 128,  who  holds  that  the  cere- 
monial of  capture  especially  symbolizes  the  subjection  of  woman  "  achet6e  ou  c6d6e 
par  les  parents ;  il  sanctionnait  les  droits,  presque  toujours  excessif s,  que  I'^poux 
acqu6rait  sur  r6pous6e." 


KiSE  OP  THE  Marriage  Contract  177 

tions  of  old,  which  they  cannot  or  dare  not  any  longer  com- 
mit.' 

"  Connubial  and  formal  capture,"  according  to  Crawley, 
"are  very  widely  spread,  but  are  never  survivals  of  real 
capture."  "  In  fact,  formal  capture,  far  from  being  itself  a 
survival,  either  of  connubial  or  of  actual  hostile  capture,  is 
the  ceremonial  mode  of  which  connubial  capture  is  the  non- 
ceremonial  ;  each  is  a  living  reality,  the  one  being  material 
and  the  other  ideal."  ^ 

Nevertheless,  after  all  is  said,  it  seems  hard  to  believe 
that  ceremonial  capture  does  not  sometimes  have  a  more  real 
significance.  Often  it  may  symbolize  the  coyness  or  mark 
the  subjection  of  woman.  More  frequently  it  may  stand  as 
a  mere  general  reminiscence  of  the  good  old  times  of  force 
and  lawlessness.  Still  it  would  be  strange,  indeed,  if  it  did 
not  also  appear  as  a  direct  survival  of  actual  wife-capture.' 
Granting  this,  however,  the  significance  of  capture  de  facto 
remains  the  same.  We  perceive  more  clearly  that  it  has 
very  widely  prevailed ;  yet  it  must  still  be  regarded  as  a  mere 
incident  of  war  and  pillage.  It  has  nothing  whatever  to  do 
with  the  institution  of  marriage.  It  could  never  on  any 
wide  scale  have  been  the  normal  manner  of  procuring  wives. 
To  assume  that  wife-stealing  has  been  a  universal  phase  in 
the  evolution  of  marriage  is  not  one  whit  more  reasonable 
than  to  hold  that  robbery  has  been  a  normal  stage  in  the 

1  Ibid.,  117.  Compare  the  suggestions  of  Abercromby,  that  "  marriage  with  cap- 
ture —  by  which  he  understands  capture  of  a  bride,  associated  with  some  other  form 
of  marriage,  such  as  that  by  purchase  — may  be  regarded  rather  as  a  result  of  the 
innate  universal  desire  to  display  courage,  than  as  a  survival  of  a  still  older 
practice  of  taking  women  captive  in  time  of  war."^WESTEEMAECK,  op.  cit.,  388,  cit- 
ing Abeeceomby's  "  Marriage  Customs  of  the  Mordrins,"  Folk  Lore,  I,  454.  Cf. 
Letoubneau,  op.  cit.,  128. 

2  Mystic  Rose,  368,  370.  In  harmony  with  his  theory  of  sexual  taboo,  he  declares 
that  it  is  "  not  the  tribe  from  which  the  bride  is  abducted,  nor,  primarily,  her  family 
and  kindred,  but  her  sex." 

3  This  is  in  effect  conceded  by  Spencer.  While  rightly  rejecting  the  theory  of 
systematic  foreign  wife-capture,  as  a  general  phase  in  the  development  of  marriage, 
he  holds  that  the  symbol  of  rape  may  sometimes  result  from  struggles  for  women 
within  the  tribe,  or  from  the  resistance  of  the  father  and  male  relatives  of  the  bride. 


178  Matrimonial  Institutions 

evolution  of  property.'  In  spite  of  Hobbes  or  McLennan, 
it  remains  to  be  proved  that  a  state  of  chronic  hostility  was 
ever  a  general  phase  in  the  history  of  mankind.  Such  a 
state  is  inconsistent  with  the  prevalence  of  the  blood-feud." 
Even  the  rule  of  exogamy  among  primitive  peoples  does  not 
harmonize  with  general  wife  capture.  For  the  coexistence 
of  clan-exogamy  and  tribal  endogamy  means,  under  normal 
conditions,  a  tendency  toward  peace  within  the  tribe.* 
There  is  strong  reason  to  believe  that  in  every  period  of 
social  development  consent  and  contract,  in  some  form,  have 
been  the  cardinal  elements  of  marriage.  Captured  or  stolen 
women  have  usually  become  slaves  or  concubines;  and,  ex- 
cept in  rare  instances,  the  relatively  small  number  of  them 
made  wives  must  always  have  been  insignificant  as  compared 
with  the  number  of  wives  obtained  in  other  ways.  Thus  the 
solution  of  the  problem  of  so-called  marriage  by  capture 
appears  to  be  similar  to  that  of  polygyny.  The  practice  of 
taking  several  wives  is  exceedingly  common ;  but  on  close  ex- 
amination we  discover  that  polygyny  is  relatively  unimpor- 
tant, and  that  it  has  never  been  able  to  displace  monogamy 
as  the  normal  type.     So  it  is  with  the  practice  of  capturing 

i"Der  Raub  begrundet  die  Ehe  nur  insofern,  als  er  zugleich  jenes  Zusammen- 
leben  herbeifuhrt;  er  ist  Eheschliessungsform  in  demselben  Sinne,  wie  er  noch  nach 
heutigem  Eecht  als  Besitzerwerbsform  bezeichnet  werden  kann."  It  is  only  a  matter 
of  Kulturgeschichte  and  has  no  juridical  significance. — BeenhOft,  "  Principien  des 
eur.  Familienrechts,"  ZVE.,  IX,  393. 

2 This  is  contrary  to  the  common  opinion,  as  expressed,  for  instance,  by  Daegun, 
op.  cit.,  84,  but  it  appears  to  be  sustained  both  by  reason  and  the  facts.  For  an 
example  of  the  restraint  of  wife-capture  through  dread  of  the  feud,  see  Cube,  The 
Australian  Race,  I,  108.  Eehme,  "  Das  Eecht  der  Amaxosa,"  ZVR.,  X,  40,  shows  that 
the  harshness  of  the  husband  is  mitigated  by  fear  of  the  vengeance  of  the  wife's  rela- 
tives ;  and  the  same  fact  is  noted  by  FisoN  and  Howitt,  Kamilaroi  and  Kurnai, 
206.  Cf.  KOHLEE,  "Das  Eecht  der  Australneger,"  ZVR.,  VII,  349;  Hellwald,  Die 
mensch.  Familie,  280 £f.,  288,  289.  298;  Lippeet,  Geschichte  der  Familie,  42;  and  his 
Kulturgeschichte,  II,  86,  87,  for  the  restraining  effects  of  the  blood-feud. 

3  This  fact  is  overlooked  by  McLennan,  who,  though  maintaining  that  exogamy 
originates  in  wife-capture,  still  believes  that  the  reduction  of  capture  to  a  system  is 
due  to  the  influence  of  exogamy.  Westeemaeck,  op.  cit.,  389,  makes  the  same  over- 
sight; though,  of  course,  the  horror  of  close  intermarriage,  in  case  of  inability  to 
purchase,  might  lead  to  the  occasional  breach  of  custom  in  the  form  of  wife-stealing. 


KiSE  OF  THE  Marriage  Contract  179 

women  for  wives.  However  prevalent  the  custom,  it  does 
not  seem  ever  to  have  greatly  influenced  the  natural  laws  or 
modified  the  fundamental  motives  upon  which  marriage  and 
the  family  rest.  But  the  value  of  the  evidence  upon  which 
this  conclusion  is  based  can  be  thoroughly  appreciated  only 
after  we  have  traced  the  origin  of  contract  in  marriage. 
Let  us  begin  with  wife-purchase,  especially  in  its  relation  to 
the  custom  of  capturing  women. 

II.  wife-purchase  and  its  survival  in  the  marriage 

CEREMONY 

It  is  a  common  opinion  that  marriage  by  purchase  super- 
sedes wife-capture  as  a  later  and  higher  stage  of  development. 
Such  apparently  is  the  view  of  McLennan,  who  regards  the 
purchase-contract  as  of  late  origin  and  as  the  principal  means 
by  which  the  transition  from  the  maternal  to  the  paternal 
system  of  kinship  and  to  the  individual  family  was  brought 
about.*  Post  declares  that  bride-purchase  is  a  universal* 
phase  of  development,  more  advanced  than  that  of  wife- 
capture  ;^  and  he  agrees  with  McLennan  in  regarding  it  as  a 
mark  of  transition.^  A  similar  position  is  taken  by  Heusler, 
Lippert,  Kulischer,  and  also  by  Kohler;*  while  Spencer, 
without  asserting  that  either  is  a  stage  through  which  mar- 
riage among  all  peoples  has  passed,  thinks  that  purchase  is 
the  usual  substitute  for  violence  as  civilization  progresses. 

1  McLennan,  Patriarchal  Theory,  45,  234,  289,  315,  320,  327,  328,  291;  cf.  Wake, 
Marriage  and  Kinship,  388  ff. 

2  Post,  Geschlechtsgenossenschaft,  63  ff . ;  Familienrecht,  175 ;  Afrikanische  Juris- 
prudenz,  I,  329  ff. ;  Ursprung  des  Rechts,  56  ff. 

3  Post,  Familienrecht,  92,  93,  96,  97.  Snch  also  is  the  opinion  of  Wake,  op.  cit., 
390  ff. 

♦Heusler,  Institutionen,  II,  280;  and  Lippeet,  Geschichte  der  Familie,  42,  44 ff., 
95-118,  agree  with  McLennan  in  regarding  purchase,  at  first  as  an  alternative  for 
capture,  as  a  general  form  of  marriage  through  which  transition  is  made  to  the 
paternal  system  of  kinship  and  the  modern  family;  Kdlischer,  in  ZFE.,  X,  193, 
218,  and  Kohlee,  "Studien,"  ZVR.,  V,  336;  "Die  Ehe  mit  und  ohne  Mundium," 
ibid.,  VI,  333  ff.,  take  a  like  position. 


180  Matrimonial  Institutions 

"We  may  suspect,"  he  says,  "that  abduction,  spite  of  parents, 
was  the  primary  form;  that  there  came  next  the  making  of 
compensation  to  escape  vengeance;  that  this  grew  into  the 
making  of  presents  beforehand ;  and  that  so  resulted  eventu- 
ally the  system  of  purchase."' 

It  requires  little  argument,  of  course,  to  show  that  rob- 
bery per  se  is  a  less  civilized  method  of  acquiring  property 
than  contract.  That  is  as  true  among  ourselves  now  as  it  has 
ever  been  among  savages.  For  particular  individuals,  even 
for  particular  tribes,  a  transition  from  rape  to  contract,  as 
the  result  of  moral  development,  will  of  course  take  place. 
It  by  no  means  follows,  however,  that  the  one  method  has 
succeeded  the  other  as  a  general  stage  for  all  mankind,  or 
indeed  for  a  single  community.  Even  if  we  admit  that 
"barter  and  commerce  are  comparatively  late  inventions  of 
man"  ^ — an  assumption  which,  though  probable,  still  requires 
proof — rape  is  not  the  necessary  alternative  in  getting  prop- 
erty, much  less  in  getting  a  wife. 

It  is  highly  significant  that  wife-capture,  real  or  pre- 
tended, is  usually  found  side  by  side  with  wife-purchase. 
They  appear  together  among  peoples  exceedingly  low  in  the 
scale  of  progress ;  while  marriage  by  purchase  very  frequently 
occurs  among  rude  races  where  capture,  unless  as  a  mere 
symbol,  is  not  found  at  all.  Thus  in  Africa  purchase  is  very 
common,  and  it  is  occasionally  accompanied  by  actual  or 
pretended  rape.'  So  likewise  real  capture  and  wife -purchase 
coexist  in  various  parts  of  Europe,  Asia,  and  America ;  and 
wherever  ceremonial  capture  occurs  among  races  not  far 
advanced   in  civilization  it  is   almost  invariably  combined 

1  Spencee,  Principles  of  Sociology,  I,  655.  Hellwald,  Die  mensch.  Familie, 
287  ff.,  takes  a  similar  position. 

2  Westeemaeck,  Human  Marriage,  400,  389,  in  opposition  to  Peschel,  The 
Races  of  Man,  209  ff.,  who  "contends  that  barter  existed  in  those  ages  in  which  we 
find  the  earliest  signs  of  our  race." 

3KOHXEE,  "Das  Xegerrecht,"  ZVR.,  XI,  432  ff.,  436;  "Studien,"  ibid.,  V,  350; 
Westeemaeck,  op.  cit.,  384;  Rehme,  "  Das  Recht  der  Amaxosa,"  ZVR.,  X,  38. 


Rise  of  the  Marriage  Contract  181 

with  marriage  by  purchase,  or  its  allied  forms,  marriage  by 
serving,  gift,  or  exchange.* 

If,  now,  the  cases  in  which  capture  and  purchase  appear 
together  be  carefully  examined,  decisive  evidence  is  disclosed 
that  the  purchase  contract  is  really  the  normal  form  of  mar- 
riage, while  capture  is  usually,  if  not  always,  merely  an 
exceptional,  even  illegal,  means  of  procuring  a  wife.  It  is 
not  surprising,  for  instance,  that  uncivilized  races,  with  well- 
established  marital  institutions,  should  occasionally  steal 
women  from  hostile  tribes.  Thus  the  Macas  Indians  of 
Ecuador  "  acquire  wives  by  purchase,  if  the  woman  belongs 
to  the  same  tribe,  but  otherwise  by  force."  ^  In  Australia 
wives  are  often,  perhaps  usually,  procured  by  exchange  or 
purchase;  and  a  girl  is  generally  betrothed  when  a  child, 
sometimes  as  soon  as  she  is  born.'  Actual  woman-capture 
exists.  But,  as  shown  by  Mr.  Howitt's  researches  and  those 
of  Spencer  and  Gillen,  marriage  with  a  captured  woman  is 
only  permitted  when  the  captor  and  the  captive  belong  to 
groups  which  may  legally  intermarry.  Death  is  sometimes 
the  penalty  for  violation  of  the  class  rules  in  this  regard. 
The  result  is  that  in  Australia  woman-stealing  "  amounts 
merely  to  a  violent  extension  of  the  marital  rights  over  a 
class  in  one  tribe  to  captured  members  of  the  corresponding 
class  in  another  tribe."  Furthermore,  if  the  native  songs 
prove  the  existence  of  wife-stealing,  they  also  bear  witness 

1  For  additional  examples  of  the  coexistence  of  real  or  pretended  capture  with 
purchase  or  its  allied  forms,  see  especially  Kohlee,  "Studien,"  ZVR.,  V,  334-68; 
idem,  "Indische  Gewohnheitsrechte,"  ibid.,  \11I,  264  (Orissa);  idem,  "Ueber  das 
Eecht  der  Papuas,"  ibid.,  VII,  378,  379  (actual  purchase  and  capture  de facto) ;  also 
Post,  Familienrecht,  138  £F.,  142  ff.,  147  ff.;  Westeemaeck,  op.  cit.,  383,  384,  386-88, 
399,401 ;  McLennan,  Studies,  I,  38,  39;  Letoueneau,  op.  cit,  120, 126, 144. 

2  Westeemaeck,  op.  cit.,  383. 

3FISON  AND  HowiTT,  Kamilaroi  and  Kurnai,  276,  285,  343  ff.,  347,  348,  352-56; 
Kohlee,  "Das  Recht  der  Australneger,"  ZVR.,  VII,  351,  352;  Cdee,  The  Au.^tra- 
lian  Race,  1, 107;  Post,  Familienrecht,  205,  206;  Westeemaeck,  op.  cit.,  390;  McLen- 
nan, op.  cit.,  I,  40.  By  the  Tualcha  mura  custom,  above  referred  to,  a  daughter  is 
promised  before  she  is  born:  Spencee  and  Gillen,  Native  Tribes  of  Cent.  Atistralia, 
554-60. 


182 


Matrimonial  Institutions 


in  the  most  decisive  manner  to  love  and  choice  in  Australian 
marriage.' 

Very  often  capture  and  purchase  are  found  united 
in  such  a  way  that  they  seem  almost  to  be  contending 
with  each  other  for  the  mastery.^  This  union  occurs  in  two 
general  forms :  either  the  woman  elopes  or  is  carried  off  with- 
out the  guardian's  consent,  and  a  reconciliation  is  subse- 
quently effected  through  payment  of  the  bride-price  or  the 
rendering  of  a  composition;  or  else  the  stipulation  of  the 
price  is  made  before  the  abduction.  In  the  latter  case  it  is 
plain  that  we  are  dealing  merely  with  ceremonial  capture; 
in  the  former  case  the  significant  fact  is  that  we  have  to  do 
with  a  breach  of  the  law.^  A  price  is  paid  for  the  stolen 
woman  because,  like  other  property,  she  has  an  economic 
value;  or  a  penalty  is  rendered  in  order  to  escape  the  blood- 
feud.  Frequently,  however,  even  when  abduction  occurs 
without  the  consent  or  knowledge  of  the  girl's  friends,  the 
subsequent  procedure  in  arranging  the  price  or  the  penalty 
is  strictly  regulated  by  custom ;  and  this  fact  may  perhaps  be 

1  McLennan,  op.  cit.,  I,  41,  42,  as  evidence  of  wife-capture,  gives  the  foUowingr 
stanzas,  taken  from  Geet'b  Travels,  II,  313: 


"Wherefore  came  you,  Weerang, 
In  my  beauty's  pride, 
Stealing  cautiously, 
Like  the  tawny  boreang. 
On  an  unwilling  bride  1 
'Twas  thus  you  stole  me 
From  one  who  loved  me  tenderly. 
A  better  man  he  was  than  thee. 
Who  having  forced  me  thus  to  wed, 
Now  so  oft  deserts  my  bed. 
Yang,  yang,  yang,  yoh. 


"Oh,  where  is  he  who  won 
My  youthful  heart ; 
Who  oft  used  to  bless 
And  called  me  loved  one  7 
You,  Wearang,  tore  apart 
From  his  fond  caress 
Her  whom  you  desert  and  shun ; 
Out  upon  the  faithless  one  1 
Oh,  may  the  Boyl-yas  bite  and  tear 
Her,  whom  you  take  your  bed  to  share. 
Yang,  yang,  yang,  yoh." 


2  Dakgun,  Mutterrecht  unci  Raubehe,  85-87,  thinks  we  have  in  these  forms  a  tran- 
sition from  actual  to  formal  wife-capture.  Possibly  they  may  represent  in  particular 
instances  transition  from  capture  to  purchase.  Cf.  Post,  Familienrecht,  142  ff .,  147  £f . 
for  numerous  examples ;  and  Kohlee,  "  Studien,"  ZVR.,  V,  337  ff. 

3  Compare  BeenhOft,  "  Principien  des  eur.  Familienrechts,"  ZVR.,  IX,  394,  395, 
who  believes  that  in  Europe  rape  was  never  a  "  legal  form  "  of  marriage.  It  was 
merely  a  "  preliminary  act."  Among  primitive  men  no  difference  is  made  between 
fact  and  law ;  and  only  in  this  sense  can  wife-capture  be  regarded  as  the  foundation 
of  a  marriage ;  ibid.,  392,  393. 


Rise  of  the  Marriage  Contract  183 

regarded  as  a  further  proof  that  the  forms  under  considera- 
tion, in  special  instances,  represent  a  transition  from  capture 
to  contract.  Among  the  Galela  and  Tobelorese,'  for  example, 
when  a  man  wishes  a  woman  of  a  hostile  tribe  or  family,  he 
causes  her  to  be  abducted,  as  she  goes  out  for  water  or  wood, 
by  twenty  or  more  of  his  female  friends,  who  bind  h^er,  if  she 
resists,  and  bear  her  away  to  his  house.  Should  the  rela- 
tives of  the  girl  attempt  a  rescue  by  force,  the  villagers 
assemble  and  try  to  effect  a  reconciliation.  Pending  the 
stipulation  of  the  bride-money,  the  girl  is  allowed  to  escape 
to  her  home,  where  she  is  carefully  watched.  On  the  third 
day  the  friends  assemble  to  discuss  the  price.  If  the  woman 
has  not  lived  with  the  man,  she  may  then  refuse  him ;  other- 
wise the  payment  of  the  price  is  finally  arranged.^  In  case 
of  elopement  it  is  the  custom  among  the  same  people  for  the 
lovers  to  fly  to  the  forest  or  to  take  refuge  in  a  "prahu"  on 
the  sea,  where  they  remain  a  month.  On  their  return  they 
are  received  in  the  house  of  the  girl's  parents.  If  the  lover 
pays  the  bride-money,  the  woman  follows  him  to  his  house; 
otherwise  he  must  remain  with  his  wife,  and  the  children 
legally  belong  to  the  mother.'  With  the  Bataks  of  Sumatra 
good  form  requires  that  the  bridegroom  should  leave  behind 
a  weapon,  a  piece  of  clothing,  or  some  similar  article  as  a 
token  that  he  has  abducted  the  bride.  Thereupon,  when  the 
bride-money  is  paid  the  marriage  is  regarded  as  legally  com- 
plete. Should  no  token  be  left,  however,  the  rape  is  illegal 
and  the  culprit  may  receive  punishment.* 

Very  naturally  elopement  or  abduction  most  frequently 
takes  place  when  it  is  difficult  or  impossible  to  bring  about 
the  marriage  in  the  legal  or  customary  way.      Either  the 

1  Inhabitants  of  the  Malay  island  of  Djilolo.  Cf.  Riedeskl,  "  Galela  und  Tobo- 
loresen,"  ZFE.,  XVII  (1885). 

2  Post,  op.  cit.,  148.  3  ibid.,  151,  152. 

*Ibid.,  148, 149.    For  other  examples  of  leaving  a  token  see  ibid.,  149, 150. 


184  Matrimonial  Institutions 

parties  belong  to  groups  between  which  jus  connubii  does 
not  exist ;  or  the  lover  is  too  poor  to  pay  the  price  demanded 
for  the  bride ;  or  else  the  parents  refuse  their  consent. 
Here  we  have  an  example  of  the  operation  of  simple  motives 
with  which  society,  at  all  times  and  in  all  places,  has  been 
familiar.  Such  marriages,  it  has  been  pointed  out,  are  usu- 
ally marriages  of  inclination  at  least  on  the  side  of  the  lover, 
as  opposed  to  the  conventional  marriage  by  purchase.^ 

It  appears,  then,  so  far  as  present  investigation  enables 
us  to  determine,  that  there  is  not  suflBcient  evidence  for 
assuming  that  wife-capture,  except  in  isolated  cases,  has 
generally  grown  into  marriage  by  purchase.  As  a  rule,  even 
among  the  lowest  races,  foreign  or  warlike  capture  is  an 
exceptional  method  of  procuring  wives  ;  while  bride-stealing 
at  home,  though  the  symbol  may  sometimes  be  sanctioned, 
is  merely  looked  upon  as  illegal  or  even  immoral  ;^  and, 
therefore,  with  advancing  civilization  it  yields  to  contract  as 
the  highest  means  of  effecting  a  marriage.' 

Having  now  considered  its  relation  to  capture,  let  us  next 
notice  the  significance  of  wife-purchase  as  a  social  institution. 

The  custom  of  giving  a  compensation  for  a  bride,  though 
not  universal,  exists  or  has  existed  among  a  vast  number  of 
peoples  in  various  stages  of  progress ;  and  it  often  survives 

^Ibid.,  138,  154  £E.  An  excellent  illustration  is  afforded  by  Kalmuck  custom: 
KOEHNE,  "  Das  Recht  der  Kalmticken,"  ZVR.,  IX,  462. 

2  Among  the  Nez-Perc6s  Indians,  for  example,  runaway  matches  are  not  unknown, 
but  "the  woman  is  in  such  cases  considered  a  prostitute,  and  the  bride's  parents 
may  seize  upon  the  man's  property." — Banceoft,  Native  Races,  I,  277. 

3  The  view  presented  in  the  text  shoxild  be  compared  with  BeenhOft's  judgment. 
Granting  that  capture  was  crowded  out  by  purchase,  he  does  not  think,  with  Dae- 
GUN,  that  it  was  effected  through  abduction  by  prior  or  subsequent  payment  of  the 
composition  or  price ;  but  rather  that  it  gradually  disappeared  in  consequence  of 
the  severe  penalties  imposed  for  breach  of  the  law  and  other  disadvantages;  so  that 
"  in  Folge  dessen  der  schon  frtiher  durchaus  ubliche  Kauf  zur  alleinigen  Eheschlies- 
sungsform  wurde." — "Principien  des  eur.  Familienrechts,"  ZVR.,TS.,  401.  Cf.  the 
theory  of  HiiiDEBEAND,  Ueber  das  Problem,  17-22,  who  thinks  rape  follows  purchase, 
at  least  in  the  form  of  gifts,  but  that  it  is  of  comparatively  little  importance;  and 
MuCKE,  Horde  und  Familie,  111  if.,  139  ff .,  who  reaches  the  same  result  in  a  different 
way.  See  also  Dargun,  Mutterrecht  und  Vaterrecht.  120-22, 127,  where  the  "illegal" 
nature  of  capture  is  admitted. 


Rise  of  the  Marriage  Contract  185 

as  a  mere  symbol  in  the  marriage  ceremony.  Kulischer, 
indeed,  declares  that  actual  wife-purchase  can  now  be  dis- 
covered only  among  a  few  savage  races.*  But  this  assertion 
seems  to  be  wholly  inconsistent  with  the  facts.  Recent 
researches,  notably  those  of  Post,  Kohler,  Westermarck,  and 
various  American  scholars,  place  it  beyond  question  that 
taking  a  wife,  as  the  prosaic  result  of  an  ordinary  bar- 
gain, is  a  familiar  institution  in  many  parts  of  the  world.^ 
Husband-purchase  also  appears,  but  examples  of  it  are 
exceedingly  rare.*  Several  methods  of  buying  a  wife  are  in 
use.  The  simplest  way,  says  Westermarck,  is  "to  give  a 
kinswoman  in  exchange  for  her."  This  method  is  found 
in  Sumatra;*  and  the  Australian  male  "almost  invariably 
obtains  his  wife  or  wives,  either  as  the  survivor  of  a  married 

IKULISCHEE,  " Intercommunale  Ehe  durch  Eaub  und  Kauf,"  ZFE.,X,  219;  cf. 
Westermakck,  op.  cit.,  390. 

2  In  general  on  wife-purchase  and  its  survivals  see  Post,  Familienrecht,  173-220; 
idetn,  Geschlechtsgenossenschaft,  63-88;  idem,  Afrikanische  Jurisprudenz,  I,  329  fif.; 
Westermarck,  Human  Marriage,  390-416;  Starcke,  Primitive  Family,  U&,232,  39, 
passim;  Letourneau,  Vivolution  du  niariage,  130-50;  Spencer,  Principles  of 
Sociology,  I,  655,  754,  755;  Hellwald,  Die  viensch.  Familie,  306  ff.,  323  £f.;  Geosse, 
Die  Formen  der  Familie,  111  ff.,  169  ff. ;  Hildebrand,  Recht  und  Sitte,  19  ff.,  31  ff . ; 
Bancroft,  Native  Races,  as  below  cited;  Feiedrichs,  " Familienstufen und  Ehefor- 
men,"  ZVR.,  X,  213,  218,  245,  246;  idem,  "Ehe  und  Eherecht  der  griechischen  Heroen- 
aeit,"  ibid.,  XI,  327ff. ;  BernhOft,  "Principien  des  eur.  Familienrechts,"  ibid.,  IX, 
400;  Kohler,  "Studien,"i6id.,V,  334-68;  idem,  "Indisches  Ehe- und  Familienrecht," 
ibid..  Ill,  345  ff. ;  idem,  "Die  Ehe  mit  und  ohne  Mundium,"  ibid.,  VI,  333  ff. ;  and  his 
other  monographs,  ibid.,  VI,  167  (Burma),  365  and  405  (China) ;  VII,  351  ff.  (Australia), 
371,  372,  378  (Papuas),  382  (India),  395  (Armenia) ;  Vlil,  85  (Gypsies),  86  (Eskimos), 
87, 113  (Dekkan),  266  (Orissa),  241  ff.  (Islam);  IX,  326,  327  (Bengal),  334  (Chittagong), 
334  (Burma);  XI,  57  (Azteks),  167  (India),  419-21,  432  ff.  (Kamerun);  Rehme,  "Das 
Recht  der  Amaxosa,"ZFi?.,X,  37,  38;  Post,  "  Kodiflkationdes  RechtsdorAmaxosa," 
ibid.,  XI,  232  ff . ;  Henrici,  "  Das  Recht  der  Epheneger,"  ibid.,  XI,  134 ;  Koehne.  "  Das 
Recht  der  Kalmtlcken,"  ibid.,  IX,  461  ff. ;  Lippert,  Geschichte  der  Familie,  42  ff.,  95- 
118;  Unger,  Die  Ehe,  11,  17,  33,  46,  47,  77;  Leist,  Alt-arisches  Jus  Gentium,  115, 116, 
122  ff. ;  Keaoss,  Sitte  und  Brauch  der  Sildslaven,  272  ff'.,  451 ;  Jolly,  Ueber  die  rechtl. 
Stellung  der  Frauen,  16  ff. ;  Kautskt,  Kosmos,  XII,  329  ff . ;  Dargdn,  Mutferrecht  und 
Vaterrecht,  122-28,  149-54;  Hecsler,  Institutionen,  II,  277-86;  Tillinghast,  "The 
Negro  in  Africa  and  America,"  Pub.  Am.  Ec.  Ass.  (New  York,  1902),  III,  chap,  v; 
Ellis,  Ewe-Speaking  Peoples,  153  ff.,  199  ff. 

■*  This  occurs,  occasionally,  where  it  is  the  custom  for  the  husband  to  pass  into 
the  wife's  family  at  marriage:  Post,  Familienrecht,  174;  cf.  Spencee,  Principles  of 
Sociology,  I,  788;  Westeemaeck,  Human  Marriage,  382,  416. 

*Westeema_eck,  op,  cit.,  390;  Maesden,  History  of  Sumatra,  259. 


186  Matrimonial  Institutions 

brother,  or  in  exchange  for  his  sisters,  or  later  on  in  life 
for  his  daughters."^  Much  more  general  is  the  custom, 
sometimes  distinguished  with  the  name  of  "marriage  by 
service,"  in  which  the  bridegroom  earns  his  bride  by  serving 
her  father.  "This  practice,  with  which  Hebrew  tradition^ 
has  familiarized  us,  is  widely  diffused  among  the  uncivilized 
races  of  America,  Africa,  Asia,  and  the  Indian  Archipelago." ' 
In  America,  as  elsewhere,  the  custom  takes  a  variety  of 
forms.  Among  the  Mayas  the  young  husband  is  required 
to  build  a  house  opposite  the  home  of  his  bride  and  live  in 
it  five  or  six  years  while  he  works  for  her  father.  If  the 
service  is  not  faithfully  performed,  he  is  dismissed,  and  the 
father-in-law  gives  his  daughter  to  another.*  In  Yucatan 
the  term  of  service  is  three  or  four  years ;  and  so  stringent 
is  the  requirement  that  it  is  regarded  as  highly  unseemly  to 
shirk  the  duty.^  According  to  Martins,  with  whom  Souza 
mainly  agrees,®  the  Brazilian  native  usually  gains  his  first 
wife  by  serving  her  father.  For  him  he  goes  hunting  and 
fishing.  He  helps  him  build  his  hut,  clear  the  forest,  bring 
wood,  and  make  canoes,  weapons,  and  nets.  During  this 
period  the  lover  continues  to  dwell  with  his  own  relatives, 
but  tarries  the  whole  day  at  the  house  of  his  wished-for 

1  Westeemaeck,  op.  cit.,  390.  Compare  Cuee,  The  Australian  Race,  I,  107; 
FisON  AND  HowiTT,  Kamilaroi  and  Kurnai,  276,  285,  343.  On  exchange  see  Kohleb, 
in  ZVR.,  Ill,  345  (India)  ;  VIII,  242  (Islam),  112  (India). 

2  LiCHTSCHKiN,  Die  Ehe  nach  mosaisch-talmud.  Auffassung,  10, 11. 

3  Westeemaeck,  op.  cit,  390,  391.  Ho  enumerates  the  tribes  in  each  continent 
among  whom  the  custom  is  found.  The  subject  is  also  discussed  by  Post,  Familien- 
recht,  197,  217-20;  idem,  Geschlechtsgenossenschaft,  75;  Letodeneac,  op.  cit.,  135-37; 
BeenhOft,  "Ehe  und  Eherecht  der  griech.  Heroenzeit,"  ZVR.,  XI,  321  £f.  For 
examples  see  Kohler,  in  ZVR.,  V,  356,  357  (Malay  tribes);  VI,  333,  334,  333  n.  49, 
167;  VIII,  113;  IX,  334;  XI,  420. 

*  Banceoft,  Native  Races,  I,  662.  5  Letoueneau,  op.  cit.,  136. 

6  The  "  youths  serve  the  parents  of  the  dames  two  or  three  years  before  they  are 
given  them  for  wives ;  and  they  do  not  give  them  except  to  those  who  serve  them 
best,  the  men  in  love  doing  the  planting,  fishing,  and  hunting  for  their  fathers-in-law 
who  wish  them  to,  and  fetch  them  firewood  from  the  forest ;  and  when  the  fathers- 
in-law  give  over  to  them  the  dames,  they  go  and  lodge  with  the  fathers-in-law  with 
their  wives,"  leaving  their  own  kindred :  SouzA<  Tratado  Descriptivo  do  Brazil  (1570- 
87) :  Bevist.  Inst.  Hist.,  XIV,  311  ff. ;  c/.  also  Kohlee,  in  ZVB.,  V,  352. 


Rise  of  the  Marriage  Contract  187 

bride.*  If  his  suit  is  successful,  either  he  may  take  up  his 
abode  for  a  while  with  his  wife's  family,  or  he  may  at  once 
set  up  a  separate  hut  for  himself.  Among  the  Guaycurus 
the  son-in-law  dwells  permanently  with  the  woman's  parents, 
but  from  the  moment  of  the  marriage  they  avoid  speak- 
ing with  him;  and  this  custom  of  "bashfulness,"  often 
regarded  as  a  survival  of  wife-capture  and  so  indirectly  of 
mother-right,  prevails  very  widely  in  America  and  in  other 
lands.^  Service,  though  merely  as  proof  of  manly  worth, 
appears  also  among  the  Seri,  "probably  the  most  primitive 
tribe  in  North  America."  The  "would-be  groom  is  required 
to  enter  the  family  of  the  girl  and  demonstrate  (1)  his 
capacity  as  a  provider  and  (2)  his  strength  of  character  as  a 
man,  by  a  year's  probation."^  Among  the  Kenai  of  the  far 
north  the  lover  must  perform  a  year's  service  for  his  bride. 
"The  wooing  is  in  this  wise:  early  some  morning  he  enters 
the  abode  of  the  fair  one's  father,  and  without  speaking  a 
word  proceeds  to  bring  water,  prepare  food,  and  to  heat  the 

1  During  this  courting  season,  among  the  small  tribes  on  the  Amazon,  the  lover 
enjoys  the  so-called  "  bosom-right ; "  and  this  custom,  which  appears  to  be  identical 
in  character  with  that  of  "bundling"  and  the  "proof-night,"  appears  elsewhere  in 
America  and  in  other  parts  of  the  world :  Maetius,  Rechtszustande,  56;  ibid,,  Ethno- 
graphie,  1, 108;  c/.  Hellwald,  Die  mensch.  Familie,  321,  322. 

2  Among  the  Siouan  peoples  "  the  mother-in-law  never  speaks  to  her  son-in-law, 
unless  on  his  return  from  war  he  bring  her  the  scalp  and  gun  of  a  slain  foe,  in  which 
event  she  is  at  liberty  from  that  moment  to  converse  with  him." — Dorset,  "Siouan 
Sociology,"  XV.  Rep.  of  Bureau  of  Eth.,  241,  242.  Read  especially  Dohsev's  very 
interesting  account  of  this  custom  in  his  "  Omaha  Sociology,"  ibid..  Ill,  262,  263;  and 
compare  Beckwith,  "  Customs  of  the  Dakotahs,"  Rep.  Smith.  Inst.,  1886,  Part  I,  256, 
257;  and  Long,  Expedition,  I,  253,  254. 

It  exists  likewise  in  Australia:  Mathew,  "  Aust.  Aborigines,"  Jour.  R.  8.  N.  S. 
Wales,  408,409;  DAVfsO's,  Aust.  Aborigines,  29;  among  the  Kafirs  and  Bushmans: 
Feitsch,  Die  Eingeborenen  Sild-Afrikas,  114,  445 ;  in  China :  Smith,  Village  Life  in 
China,  chap,  xxiii;  in  general,  Hellwald,  Die  mensch.  Familie,  289,  290;  Lippekt, 
Kulturgeschichte,  II,  93;  and  Ceawley,  Mystic  Rose,  391-414,  passim. 

sMcGee,  "Siouan  Indians,"  XV.  Rep.  of  Bureau  of  Eth.,  202;  and  especially  his 
"  Seri  Indians,"  ibid.,  XVII,  Part  I,  279-87 ;  cf.  Ratzel,  Hist,  of  Mankind,  II,  125,  who 
says  the  marriage  ceremonies  often  mean  ability  to  support  a  family.  The  Point 
Barrow  Eskimo  takes  his  wife  for  "reasons  of  interest."  Ho  wants  her  for  house- 
hold duties;  and  conversely  she  desires  a  good  hunter.  The  mother  usually  chooses 
for  her  son  the  prospective  bride,  who  is  expected  to  serve  a  probation  as  "  kivgak  " 
(servant)  in  the  future  mother-in-law's  kitchen;  but  sometimes  the  man  goes  to  the 
woman's  house  to  become  a  member :  Mukdoch,  IX.  Rep.  of  Bureau  of  Eth.,  401. 


188  Matrimonial  Institutions 

bath-room."  When  asked  why  he  performs  these  services, 
"he  answers  that  he  desires  the  daughter  for  a  wife.  At 
the  expiration  of  a  year,  without  further  ceremony,  he  takes 
her  home,  with  a  gift;  but  if  she  is  not  well  treated  by  her 
husband,  she  may  return  to  her  father,  and  take  with  her 
the  dowry." '  In  some  places  the  service  must  all  be 
rendered  in  advance;  in  others,  the  girl  is  received  on 
credit  and  the  man  serves  the  required  term  after  the  mar- 
riage— a  familiar  example  of  each  of  these  methods  being 
afforded  by  the  case  of  Jacob  and  Laban's  daughters.* 
Moreover,  as  already  seen,  sometimes  it  is  only  the  first  or 
chief  wife  who  is  earned  by  service,  the  later  ones  being 
bought  in  exchange  for  property  in  the  more  usual  way. 

According  to  Spencer,  the  "obtaining  of  wives  by  ser- 
vices rendered,  instead  of  by  property  paid,"  is  a  "cause  of 
improvement  in  the  treatment  of  women,"  and  constitutes 
therefore  a  "higher  form  of  marriage,"  developing  "along 
with  the  industrial  type"  of  society.  "Obviously,  a  wife 
long  labored  for  is  likely  to  be  more  valued  than  one  stolen 
or  bought;"  and  the  long  association  of  the  lovers  during 
the  time  of  service  is  likely  to  foster  more  refined  senti- 
ments than  the  "merely  instinctive;"  to  imitate  "something 
approaching  to  the  courtship  and  engagement  of  civilized 
peoples."  *  But,  on  the  other  hand,  without  denying  that 
these  results  may  follow,  Westermarck  forcibly  objects  that 
"industrial  work  promotes  accumulation  of  property,  and 
consequently  makes  it  easier  for  the  man  to  acquire  his  wife 

1  Banceoft,  Native  Races,  1, 134. 

2  So  in  New  Guinea :  Kohlee,  in  ZVR.,  Vll,  371.  In  some  cases  the  "  man  goes 
over  to  the  woman's  family  or  tribe  to  live  there  forever;  but  Dr.  Starcke  suggests 
that  this  custom  has  a  different  origin  from  the  other,  being  an  expression  of  the 
strong  clan  sentiment,  and  not  a  question  of  gain." — Westeemaeck,  Human  Mar- 
riage, 391 ;  Staecke,  Primitive  Family,  39.  For  McLennan's  view  of  so-called 
"Beena"  marriage,  see  above,  p.  16. 

3SPENCEE,  Principles  of  Sociology,  1,  754,  755.  On  the  modification  of  the  servi- 
tude of  the  wife  through  the  service-contract  see  Letoueneau,  L''6volution  du 
mariage,  137;  Banceoft,  Native  Races,  1, 134  (Kenai). 


Rise  of  the  Marriage  Contract  189 

by  real  purchase."  Serving  for  wives  is  prevalent  among 
such  rude  races  as  the  Bushmans  and  Fuegians.  Hence  il 
seems  "almost  probable  that  marriage  by  services  is  a  more 
archaic  form  than  marriage  by  purchase ;  but  generally  they 
occur  simultaneously."  ' 

By  far  the  most  common  way  of  purchasing  a  wife  is  by 
giving  property  in  exchange.^  Usually  the  amount  of  the 
price  is  arranged,  like  any  other  bargain,  by  agreement 
between  the  interested  parties;  but  sometimes  it  is  estab- 
lished by  custom.^  Always  where  the  contract  is  merely  a 
commercial  transaction  the  price  is  in  theory  an  equivalent 
for  the  economic  loss  sustained  by  the  family  or  gc7is  of  the 
bride.*  But  the  amount  varies  in  every  possible  way.  Often 
it  depends  upon  the  rank  or  beauty  of  the  woman ;  or  it  may 
be  determined  by  her  strength  and  capacity  for  bearing 
children.  It  varies  also  with  the  economic  condition  of  the 
times,  the  wife-market  depending  largely  upon  the  law  of 
supply  and  demand.  In  hard  times,  or  where  there  is  an 
excess  of  women,  wives  are  cheap;  when  times  are  good  or 
women  scarce,  the  price  rises  in  proportion.  Among  peoples 
somewhat  advanced  in  culture  sentiment  must,  of  course,  be 
taken  into  account.  Where  it  is  regarded  as  a  disgrace  to 
accept  a  small  compensation  for  a  daughter,  high  prices  may 
lead  to  celibacy.  Such,  at  the  beginning  of  the  past  century, 
was  the  case  in  Servia,  where  the  bridegroom,  in  addition  to 
the  purchase  price,  was  expected  to  bestow  liberal  presents, 
not  only  upon  the  bride  and  her  mother,  but  also  upon  all 
her  near  relatives.  The  presents  were  so  expensive  that 
many  a   "poor  fellow  was  unable  to  marry  at  all;"  and  so 

1  Westeemaeck,  op.  cit.,  391,  392. 

2  On  the  bride-price  in  various  countries  see  Post,  Familienrecht,  181-201; 
Westeemaeck,  op.  cit..  392-94;  Keauss,  Sitte  und  Branch  der  Siidslaven,  273  S.; 
KoHLEE,  "Studien,"  ZVR.,  V,  338  ff. ;  Wake,  Marriage  arid  Kinship,  191,  199  ff., 
239  £B.,  215,  218,  235 ;  Buch,  Die  Wotj&ken,  49  ff. 

3  Post,  op.  cit.,  181, 183,  *  Ibid.,  181. 


190  Matrimonial  Institutions 

Black  George  in  1849  had  a  sumptuary  law  enacted  restrict- 
ing the  price  of  a  girl  to  one  ducat,  and  this  must  be  paid 
before  the  wedding.*  But  the  bride-price  "varies  most 
according  to  the  circumstances  of  the  parties,  and  according 
to  the  value  set  on  female  labour." ' 

Custom  differs  as  to  the  time  of  payment.  Sometimes 
the  full  price  must  be  given  before  the  nuptials;  often  the 
bride  is  received  on  credit,  and  the  price  subsequently  paid 
in  instalments.  In  case  of  credit  the  wife  with  the  children 
usually  remains  with  her  father,  and  the  husband  does  not 
gain  absolute  ownership  or  control  until  the  debt  is  paid 
in  full.' 

Among  the  aborigines  of  America,  North  and  South, 
actual  wife-purchase,  both  by  service  and  by  property 
rendered,  is  exceedingly  common;  though  in  some  tribes, 
as  in  other  parts  of  the  world,  the  transaction  takes  the  form 
of  a  simple  exchange  of  gifts  or  of  a  bestowal  of  presents 
upon  the  bride's  parents.  The  price  is  usually  paid  in 
horses,  but  many  other  forms  of  property  are  employed. 
Among  the  Kwakiutl,  says  Boaz,  marriage  "must  be  con- 
sidered a  purchase,  which  is  conducted  on  the  same 
principles  as  the  purchase  of  a  copper.  But  the  object 
bought  is  not  only  the  woman,  but  also  the  right  of  mem- 
bership in  her  clan  for  the  future  children  of  the  couple." 

1  Kradss,  Sitte  und  Branch  der  SUdslaven,  275  ff.  But  see  especially  Tuenee, 
Slavisches  Familienrecht,  22,  24,  who  declares  that  the  law  of  Black  George  was 
purely  sumptuary,  not  dealing  at  all  with  the  price  of  the  bride,  but  with  mere 
presents  from  the  man's  friends.  The  mistake,  he  says,  originates  in  a  wrong  trans- 
lation by  Talvy,  Serbische  VolksUeder,  II,  Einleit.,  2.  Turner  in  general  denies  the 
former  existence  of  wife-purchase  among  the  Slavs,  rejecting  SchlOzee's  translation 
of  Nestor,  I,  chap.  12,  124  ff.,  which  passage  is  an  important  source  usually  cited  in 
favor  of  former  purchase.  Kovalevsky,  Mod.  Customs  and  Anc.  Latos  of  Russia, 
26  ff.,  however,  follows  the  usaal  interpretation  of  Nestor  and  the  law  of  Black 

,George,  giving  examples  of  alleged  wife-purchase  and  its  survivals.  Cf.  Post,  op. 
cit.,  182,  183;  and  Westeemaeck's  chapter  on  "Marriage  and  Celibacy,"  espe- 
cially, 145. 

2  Westeemaeck,  op.  cit,  392;  Post,  op.  cit,  180  ff.,  188. 

3 Ibid.,  193-99;  Kohlee,  "Studien,"  ZVR.,  V,  338,  350,  351 ;  Wkstbkmaeck,  op. 
cit,  394;  Kohlee,  in  ZVR.,  VII,  371. 


Rise  of  the  Marriage  Contract  191 

For  "many  privileges  of  the  clan  descend  only  through 
marriage  upon  the  son-in-law  of  the  possessor,  who,  how- 
ever, does  not  use  them  himself,  but  acquires  them  for  the 
use  of  his  successor.  These  privileges  are,  of  course,  not 
given  as  a  present  to  the  son-in-law,  but  he  becomes  entitled 
to  them  by  paying  a  certain  amount  of  property  for  his  wife. 
The  wife  is  given  to  him  as  a  first  instalment  of  the  return 
payment.  The  crest  of  the  clan,  its  privileges,  and  a  con- 
siderable amount  of  other  property  besides,  are  given  later 
on,  when  the  couple  have  children,  and  the  rate  of  interest 
is  the  higher  the  greater  the  number  of  children.  For  one 
child  200  per  cent,  of  interest  is  paid;  for  two  or  more 
children  300  per  cent.  After  this  payment  the  marriage 
is  annulled,  because  the  wife's  father  has  redeemed  his 
daughter.     If  she  continues  to  stay  with  her  husband,  she 

does  so  of  her  own  free  will In  order  to  avoid  this 

state  of  affairs,  the  husband  often  makes  a  new  payment  to 
his  father-in-law"  so  that  he  "may  have  a  claim  to  his 
wife." ' 

According  to  Dakota  usage,  either  "bundles"  of  presents 
are  exchanged  by  the  interested  families,  or  else  the  young 
man  who  wooes  the  maiden  ties  "a  horse  at  her  parents' 
door."  On  returning,  if  he  finds  the  horse  still  there,  he 
adds  "another,  keeping  this  up  until"  his  "limit  is  reached." 
If  the  horses  are  taken  away,  he  then  enters  "the  lodge  and 
takes  his  bride  home."  In  case  too  high  a  price  is  demanded 
the  lover  tries  elsewhere  with  his  horses,  unless,  indeed,  he 
entices  the  girl  to  elope  with  him;  for  "this  is  also  recog- 
nized as  a  marriage."^  In  "choosing  a  helpmate  or  help- 
mates for  his   bed  and  board,  the  inland    native"   of  the 

1  BoAZ,  "  Kwakiatl  Indians,"  Rep.  Smith,  Inst.,  1895,  Nat.  Mus.,  358,  359. 

2BECKWITH,  "Customs  of  the  Dakotahs,"  Rep.  Smith.  Inst,  1SS6,  Part  I,  255-57, 
Compare  Riggs,  "Dakota  Grammar,"  Cont.  to  N.  A.  Eth.,  IX,  205,  206.  "Dowries" 
are  exchanged  among  the  Coast  Indians:  Niblack,  Rep. Smith.  Inst.,  1888,  Nat.  Mus., 
367,  368.  Bundles  of  presents  are  used  by  the  Abipones :  Klemm,  Kulturgeschichte, 
II,  75,  76, 


192  Matrimonial  Institutions 

Columbian  region  "makes  capacity  for  work  the  standard 
of  female  excellence,  and  having  made  an  election  buys 
a  wife  from  her  parents  by  thg  payment  of  an  amount  of 
property,    generally    horses,    which    among    the    southern 

nations  must  be  equaled  by  the  girl's  parents To 

give  away  a  wife  without  a  price  is  in  the  highest  degree 
disgraceful  to  her  family." '  Among  the  Indians  of  north- 
ern California  likewise  "marriage  is  sometimes  essentially  a 
matter  of  business.  The  young  brave  must  not  hope  to  win 
his  bride  by  feats  of  arms  or  softer  wooing,  but  must  buy 
her  of  her  father,  like  any  other  chattel,  and  pay  the  price 
at  once,  or  resign  in  favor  of  a  richer  man.  The  inclina- 
tions of  the  girl  are  in  nowise  consulted;  no  matter  where 
her  affections  are  placed,  she  goes  to  the  highest  bidder." 
The  social  position  of  the  bride  depends  upon  the  price  she 
brings;  and,  as  a  natural  result  of  the  system,  the  "rich  old 
men  almost  absorb  the  female  youth  and  beauty  of  the  tribe, 
while  the  younger  and  poorer  men  must  content  themselves 
with  old  and  ugly  wives.  Hence  their  eagerness  for  that 
wealth  which  will  enable  them  to  throw  away  their  old  wives 
and  buy  new  ones."  ^  Among  the  California  Karok,  accord- 
ing to  Powers,  "a  wife  is  seldom  purchased  for  less  than 
half  a  string"  of  dentalium  shell,  but  "when  she  belongs  to 
an  aristocratic  family,  is  pretty,  and  skilful  in  making  acorn- 
bread  and  weaving  baskets,  she  sometimes  costs  as  high  as 
two  strings."^  According  to  the  same  authority,  among  the 
Shastika  in  California  a  girl  is  bought  "of  her  father  for 
shell-money  or  horses,  ten  or  twelve  cayuse   ponies   being 

1  Banckoft,  op.  cit.,  I,  276,  277.  According  to  Wake,  Marriage  and  Kinship,  183, 
the  Indians  of  northern  California  are  "so  essentially  wife  purchasers  that  the 
children  of  a  wife  who  has  cost  her  husband  nothing  are  looked  upon  as  bastards 
and  treated  with  contempt." 

2  Banceoft,  op.  cit.,  I,  349,  350.  The  old  men  have  a  similar  monopoly  amone 
the  Zulus:  Kohlee,  in  ZVR.,  V,  350. 

3  Powers,  Tribes  of  California,  22.  A  string  of  dentalium  is  worth  $40  or  $50, 
ibid.,  21. 


Rise  of  the  Marriage  Contract  193 

paid  for  a  maid  of  great  attractions;"'  and  the  Navajo 
bridegroom  of  New  Mexico  will  pay  so  exhorbitant  a  price 
as  twelve  horses  only  for  a  bride  "possessing  unusual  quali- 
fications, such  as  beauty,  industry  and  skill"  in  her  necessary 
employments.^ 

Marriage  by  purchase  appears  also  among  various  African 
peoples.'  The  bride-price  is  usually  rendered  in  cattle  or 
goats,  the  amount  varying  greatly  even  in  the  same  tribe. 
From  two  to  thirty  cows  will  buy  a  wife  among  the  Kafirs. 
But,  as  sometimes  happens,  if  a  youth  through  his  friends 
reveals  to  the  father  a  liking  for  his  daughter,  he  must  in 
consequence  pay  more  oxen  for  his  bride.*  By  the  Zulu  a 
newly  bought  wife  is  regarded  as  an  investment  of  capital 
from  which  is  expected  a  return  of  interest  through  her 
labor  and  the  children  which  she  bears.  Should  he  be  dis- 
appointed in  his  bargain,  the  woman  becoming  sick,  weak, 
or  remaining  childless,  he  sends  her  back  to  her  father  and 

i  Ibid.,  241. 

2 Westeemaeck,  op.  cit.,  292,  293:  Schoolceaft,  Indian  Tribes,  IV,  214; 
Letheeman,  "Sketch  of  the  Navajo  Tribe  of  Indians,"  Bep.  Smith.  7nsf.,  1855,  294. 

On  wife-purchase,  exchange  of  presents,  and  wedding  ceremonial  among  Ameri- 
can aborigines  see  further  Maetius,  Rechtszustande,51,5i;  idem.  Ethnographic,  I, 
108-10;  Eells,  "Indians  of  Wash.  Ter.,"  Rep.  Smith.  Inst,  1887,  665  (price  of  woman 
$100  to  $400) ;  McGee,  "  Siouan  Indians,"  XV.  Rep.  of  Bureau  of  Eth.,  178;  Doesey, 
"Siouan  Sociology,"  ibid.,  XV,  242;  Tttenee,  "Ethnology  of  the  Ungava  District," 
iftjd.,  XI,  188;  MacCauley,  "Seminole  Indians  of  Florida,"  ibid.,\,  495,  496  (cere- 
monies); Kohlee,  "Studien,"  ZVR.,  V,  342,  352  ff. ;  Post,  Familienrecht,  183; 
Schoolceaft,  Indian  Tribes,  II,  48. 

3  Letocenead,  V6volution  du  mariage,  137  ff. ;  Kohlee,  in  ZVR.,  V,  350  ff . ;  idem, 
"Das  Negerrecht,"  ibid.,  XI,  419  ff.,  433,  434,  435-41;  Behme,  "Das  Recht  der 
Amaxosa,"  ibid.,  X,  37, 38;  Heneici,  "Das  Recht  der  Epheneger,  ibid.,  XI,  134;  Post, 
i6id.,  XI,  232  (Amaxosa);  idem,  Familienrecht,  183,184;  Bdchnee,  Kamerun,  31  ff . ; 
especially  Feitsch,  Die  Eingeborenen  SUd-Afrikas,  112  ff.  (Kafirs),  141-44  (Zulus), 
192-94  (Bechuanas),  365  (Namaquas),  444,  445  (Bushmans) ;  and  Munzingee,  Ostafri- 
kanische  Studien,  146  ff.,  240,  241,  319  ff.,  387;  Ellis,  Ewe-Speaking  Peoples,  153  ff., 
199  ff. 

*  Westeemaeck,  op.  cit.,  393.  Compare  Feitsch,  op.  cit.,  112, 113,  who  says  the 
"price  varies  from  some  six  or  seven  oxen  to  thirty  or  more,  if  the  daughter  of  a 
respectable  chief  is  concerned."  The  price  is  usually  paid  in  instalments;  and, 
according  to  Fritsch,  among  the  Kafirs  the  only  thing  which  distinguishes  a  woman 
from  cattle  is  the  fact  that  her  lord  and  master  may  not  wantonly  kill  her  or  do  her 
severe  bodily  hurt;  for  then  the  chief  would  demand  the  composition  or  blood- 
money. 


194  Matrimonial  Institutions 

demands  a  return  of  the  cattle.*  The  Damara  are  so  poor 
"that  they  are  often  glad  to  take  one  cow  for  a  daughter." 
The  rate  is  much  higher  among  the  Banyai.  "In  Uganda, 
the  ordinary  price  of  a  wife  is  either  three  or  four  bullocks, 
six  sewing  needles,  or  a  small  box  of  percussion  caps,  but 
Mr.  Wilson  was  often  offered  one  in  exchange  for  a  coat  or 
a  pair  of  shoes.'"'  Very  commonly  in  Africa  wives  are 
pawned  or  even  mortgaged,  and  they  are  devolved  upon  the 
husband's  heirs  as  a  part  of  the  inheritance.^ 

Throughout  the  rude  tribes  of  Asia  and  northern  Europe, 
more  especially  among  those  of  the  Turco-Tartaric  race, 
wife-purchase  exists  in  its  crudest  form.*  The  kalym,  or 
bride-price,  is  usually  rendered  in  horses  or  cattle.  The 
young  Kirgese,  for  instance,  has  to  pay  from  three  hundred 
to  one  thousand  head  of  cattle  or  one  hundred  mares  for  a 
wife,  five  mares  being  reckoned  as  the  equivalent  of  a  camel/ 
Ordinarily  a  widow  depreciates  in  market  value  as  compared 
with  a  maiden;®  but  the  Turcoman  is  more  practical,  know- 
ing the  advantage  of  experienced  service.    Though  generally 

1  In  such  case  the  father  may  return  the  woman  to  the  husband  with  a  part  of 
the  cattle ;  and  thus  the  higgling  will  proceed  till  an  agreement  is  reached :  Feitsch, 
op.  cit.,  143, 144;  cf.  Eatzel,  Hist,  of  Mankind,  II,  434  (Zulus),  370  (Bechuanas). 

2  Westermaeck,  op.  cit.,  393;  Eatzel,  op.  cit..  Ill,  16;  Wilson  and  Felkin, 
Uganda  and  the  Egyptian  Soudan,  1, 187.  Purchase  or  exchange  of  gifts  exists  widely 
among  the  peoples  on  the  northern  borders  of  Abyssinia :  Munzingee,  Ostaf.  Studien, 
146  £F.,  240,  241,  319  £f.,  387.  Cf.  also  Post,  op.  cit.,  183,  184;  Letoueneau,  op.  cit., 
137  ff.;  Wake,  op.  cit.,  213-15;  Waitz,  Anthropologic,  II,  108-17  (many  examples). 

3  Waitz,  op.  cit.,  II,  118, 119;  Kohlee,  "  Das  Negerrecht,"  ZVR.,  XI,  422-24.  In 
case  of  the  death  of  a  husband  who  has  made  part  payment  for  his  wife,  the  son  or 
other  heir  pays  the  balance  due  and  takes  the  woman :  ibid.,  423,  424.  For  cases  of 
wife-pawning  among  the  Siamese  see  Bastian,  Rechtsverhdltnisse,  407  ff. 

*  See  particularly  Kohlee,  in  ZVR.,Y,  334  ff .,  who  gives  much  interesting  matter 
relating  to  these  peoples;  also  Fost,  op.  cit.,  184  ff. ;  Letoueneau,  op.  cit.,  143 ff.; 
Westeemaeck,  op.  ci<.,  393,  395;  Schboedeb,  Hochzeitsbrduche,  passim;  BucH,  Die 
Wotjdken,  loc.  cit. 

5  Post,  oji.  cit.,  185, 186.  Among  the  Kirgese  of  Semipalatinsk  cattle  are  the  unit 
of  exchange  in  which  other  property  is  reckoned:  ibid.,  186.  Post  gives  many 
interesting  details  as  to  prices  of  women  among  the  Asiatic  and  European  peoples. 

6  Post,  ibid.,  190  ff.,  gives  examples.  "Bei  den  Osseten  im  Kaukasus  zahlt  man 
fflr  Wittwen  die  Halfte  des  Brautpreises  der  Jungfrau,  bei  den  Arabern  am  Sinai  die 
Halfte  Oder  ein  BritteV— Ibid.,  191.    Cf.  also  Westeemaeck,  op.  cit:,  392. 


Rise  op  the  Marriage  Contract  195 

a  young  girl  may  be  had  for  five  camels,  he  is  quite  willing 
to  give  fifty  or  even  a  hundred  for  a  well-preserved  widow.' 
The  Tartar  maiden  of  northern  Asia  is  sold  by  her  parents 
for  such  goods  as  pass  current  in  exchange.  She  brings 
usually  a  variable  number  of  sheep,  horses,^ or  cattle;  but 
the  price  is  also  rendered  in  other  commodities,  such  as 
brandy,  beer,  or  linen.  The  contract  is  arranged  with  the 
utmost  exactness  between  the  parents.  The  future  husband 
and  wife  are  not  even  informed.  In  theory,  at  least,  "their 
sentiments,  their  desires  and  antipathies,  are  not  taken  into 
consideration."  When  all  is  carefully  specified,  the  contract 
of  sale  is  legally  completed  before  witnesses;  but  the  bride 
is  not  delivered  to  the  bridegroom  until  after  the  ceremony 
of  marriage,  which  takes  the  form  of  symbolical  capture.^ 
In  China  the  harsher  features  of  this  custom  are  somewhat 
softened.  A  "present  is  given  by  the  father  of  the  suitor, 
the  amount  of  which  is  not  left  to  the  good  will  of  the 
parties  ....  but  is  exactly  stipulated  for  by  the  negotia- 
tors of  the  marriage,"  the  transaction  thus  difPering  but 
little  in  form  from  an  ordinary  bargain,  although  it  must  not 
always  be  regarded  as  an  actual  contract  of  sale,  but  rather 
as  a  means  of  providing  the  wife's  dower.' 

In  all  branches  of  the  Semitic  race  marriage,  at  some 
time,  has  been  a  matter  of  simple  sale  and  purchase.  The 
married  woman,  in  early  Arabia,  was  looked  upon  as  merely 

1  Letoueneau,  Vivolution  du  mariage,  144.  Women  who  have  shown  themselves 
fmitful  sometimes  bring  more  than  girls:  Post,  op.  cit.,  190,  191;  Die  Anf&nge  des 
Staats-  und  Rechtsleben,  41  ff. ;  Afrikanische  Jurisprudenz,  I,  340,  341. 

2 Letoueneau,  op.  cit.,  143,  144.  Cf.  Koehne,  "Das  Recht  der  Kalmucken," 
ZVR.,  IX,  461 11.,  who  shows  that  the  Kalmuck  wife  is  in  a  relatively  worthy  ixasition. 

3  Westeemaeck,  op.  cit.,  394,  395 ;  Jamieson,  China  Revieto,  X,  78.  But  compare 
MOllendoeff,  Das  chinesische  Familienrecht,  21,  23,  passim;  and  Smith,  Village 
Life  in  China,  chap,  xxiii.  According  to  Hue,  Chinese  Empire,  II,  225  if.,  the  price  is 
paid  in  two  instalments,  one  part  at  the  signing  of  the  contract,  another  a  few  days 
before  the  wedding.  Gifts  are  also  made  by  the  bridegroom's  parents;  while  the 
bride's  parents  provide  her  with  a  trousseau.  Cf.  Kohlee,  "  Aus  dem  chinesischen 
Civilrecht,"  ZVR.,  VI,  365  ff.,  405, 406 ;  Letoueneau,  op.  cit.,  144, 145 ;  Ratzel,  Hist,  of 
Mankind,  III,  493-508;  Klemm,  Kulturgeschichte,  VI,  102-24. 


196  Matrimonial  Institutions 


a  bond  servant.  "  I  charge  you  with  your  women,"  says  the 
prophet,  "for  they  are  with  you  as  captives."  Accordingly, 
Kobertson  Smith  informs  us,  in  Arabic  lexicons  dwdnt,  or 
"captives,"  is  "actually  used  in  the  sense  of  married  women 
generally."  ^  The  mahr,  or  bride-price,  was  paid  to  the 
woman's  kindred.  But  under  Islam  it  has  become  identical 
with  the  saddc,  or  present  to  the  bride,  the  two  terms  being 
synonymous.^  The  Arabic  mahr  is  the  same  as  the  Syriac 
mahrd  and  the  Hebrew  mdhar;  and  in  each  case  it  is  paid 
to  the  damsel's  father.^  In  the  early  days  of  Israel,  appar- 
ently, the  amount  of  the  bride-price  established  was  fifty 
shekels  of  silver;*  and  Boaz  actually  declares  that  he  has 
purchased  Ruth  the  Moabitess  to  be  his  wife.^  At  this  time, 
however,  the  context  shows  that  marriage  among  the  Jews 
was  something  more  than  a  mere  bargain,  though  there  can 
be  little  doubt  that  actual  wife-purchase  originally  existed. 
"At  a  later  date,  a  girl  was,  until  puberty,  at  the  disposal  of 
her  father,  who  could  either  sell  her  or  marry  her  to  whom 
he  pleased,  being  a  Hebrew.  There  were,  however,  certain 
conditions,  one  of  which  was  that  the  purchaser  could  not 
sell  the  girl  to  another  person,  and  if  he  did  not  espouse  her, 

1  Smith,  Kinship  and  Marriage,  77  ff.  He  quotes  the  following  lines  from  the 
Kamil,  270  ff. : 

"  Never  let  sister  praise  brother  of  hers :  never  let  daughter  bewail 

a  father's  death; 
"  For  they  have  brought  her  where  she  is  no  longer  a  free  woman, 
and  they  have  banished  her  to  the  farthest  ends  of  the  earth." 

2 Smith,  op,  cit.,  78,  79.  Cf.  on  the  Arabs,  Letoueneau,  op.  cit.,  117;  Westeb- 
MAECK,  op.  cit.,  395;  Post,  op.  cif.,  191-93, passim;  especially  Kohlee,  "Studien," 
ZVR.,  V,  357  ff.,  and  the  literature  there  cited ;  idem,  "  Ueber  das  vorislamitische 
Recht,"  ibid.,  Vlll,  241,248,259;  and  Toenauw,  "Das  Erbrecht  nach  den  Verord- 
nungen  des  Islams,"  ibid.,  V,  129-37;  Feiedeichs,  "  Das  Eherecht  des  Islam,"  ibid., 
Vll,  259-61,  243,  252,  272. 

3  Smith,  op.  cit.,  79. 

*Dent.  27:29;  cf.  Lichtschein,  Die  Ehe  nach  mosaisch-talmudischer  Auffas- 
sung,  10. 

5  Ruth  4: 10;  Hosea  3:2.  Cf.  Smith,  op.  cit.,  79;  Westeejiaeck,  op.  cit.,  395 ;  and 
in  general  on  Hebrew  matrimonial  customs  see  Badee,  La  femme  biblique,  1-225, 
114, 115(m6har). 


Rise  of  the  Marriage  Contract  197 

or  marry  her  to  his  son,  he  was  bound,  when  she  reached 
the  age  of  puberty,  or  at  the  end  of  six  years,  to  aid  her  in 
obtaining  freedom  by  reclaiming  from  her  father  the  price 
paid  for  her  services."  '  "In  the  betrothal  by  kasajjJi,  of  the 
later  Talmudic  law,  purchase  appears  as  a  mere  survival. 
The  man  gives  to  his  chosen  bride,  in  the  presence  of  two 
witnesses,  a  piece  of  money  or  some  other  gift  of  equal 
value,  with  the  words:  'Be  thou  consecrated  to  me.'  Even 
the  peruta  or  smallest  coin  used  in  Palestine  or  some  unim- 
portant friendly  service  was  legally  sufficient;'^  and  this 
sham  purchase  has  been  perpetuated  in  the  modern  Jewish 
ceremony  of  'marrying  by  the  penny.'"  ^ 

Traces  of  marriage  by  purchase,  real  and  pretended,  are 
also  widely  diffused  throughout  the  nations  of  the  Aryan 
stock.  Among  the  Afghans  the  price  of  a  bride  is  paid  to  the 
father,  but  he  returns  a  part  of  it  as  a  dower.*  In  upper 
Albania  the  price  is  equivalent  to  600  marks;  and  there  the 
symbols  of  rape  appear  in  the  marriage  ceremony.^  Accord- 
ing to  Leist  and  Zimmer,  the  Hindu  maiden  in  Vedic  times 
was  sought  of  her  father,  not  by  the  suitor  himself,  but  by  a 
friend  called  the  bride-wooer  f  but,  as  a  legal  form,  the  bride 

1  Wake,  op.  cit,  237;  Weill,  La  femme  juive  (1874),  11, 12, 117  ff. 

2  LiCHTscfffeiN,  Die  Ehe,  11,  12;  Mielzinee,  Jewish  Law  of  Marriage  and 
Divorce,  77  ff.  This  author's  surmise  that  the  symbolical  marriage  with  money  was 
adopted  under  influence  of  the  Roman  coemptio  is,  of  course,  not  well  founded:  ibid., 
78  n.  2. 

3  Westeemaeck,  op.  cit.,  395.  Even  in  the  days  of  Abraham  the  purchase 
price  is  beginning  to  be  transformed  into  a  dower:  "And  the  servant  brought  forth 
jewels  of  silver,  and  jewels  of  gold,  and  raiment  and  gave  them  to  Rebekah ;  he  gave 
also  to  her  brother  and  to  her  mother  precious  things." — Gen.  24:53.  Cf.  Westee- 
MAECK,  408,  and  the  authorities  there  cited. 

*  KoHLEE,  in  ZFR.,  V,  361.  Cf.  Letoueneau,  op.  cit.,  147,  who  says  that  so  much 
do  they  regard  wives  as  property  that  in  case  of  remarriage  the  second  husband  has 
to  indemnify  the  family  of  the  first  for  the  bride-price. 

5KOHLEE,  loc.  cit.,  361,  362.  Even  in  recfent  times  the  chieftains  in  middle 
Albania  were  accustomed  to  steal  their  wives  from  Turkish  families  and  to  compel 
them  to  receive  Christian  baptism :  ibid.,  362. 

6The  "bride-wooer"  appears  in  many  places:  Scheoedee,  Bochzeitsbrduche, 
32-45,  200 ff.;  Kohlek,  "Indische  Gewohnheitsrechte,"  ZVE.,  VIII,  90. 


198  Matrimonial  Institutions 

must  be  paid  for  by  rich  presents,'  which  were,  however,  re- 
turned to  her  as  a  dower.^  Here  we  have  to  do  with  a  sur- 
vival; but  originally  actual  wife-purchase,  side  by  side  with 
wife-capture,  must  have  existed.  One  of  the  eight  forms  of 
marriage  mentioned  in  the  Ordinances  of  Manu  as  having 
been  proper  for  the  two  lower  castes,  but  here  condemned  as 
immoral,''  is  the  Asura  rite.  It  is  described  as  "the  gift  of  a 
maiden  voluntarily  after  presenting  to  the  kinsmen  and  the 
maiden  wealth  as  much  as  the  suitor  can."  *  Disapproval  of 
real  wife-purchase  thus  early  produced  two  very  important 
results :  the  institution  of  dower,  already  mentioned,  and  the 
Arsha  rite,  or  ceremonial  purchase,  still  the  most  common 
form  of  marriage  in  India.'^  But  the  victory  was  by  no  means 
complete.  "According  to  Dubois,  to  marry  and  to  buy  a  wife 
are  in  India  synonymous  terms,  as  almost  every  parent  makes 
his  daughter  an  article  of  traffic. '"* 

1  ZiMMEE,  Altindisches  Leben,  309-11, 314.  Leist,  Alt-arisches  Jus  Gentium,  125-75, 
gives  a  masterly  discussion  of  marriage  among  the  early  Aryans,  with  particular 
reference  to  the  Hindus.  With  this  should  be  compared  the  able  paper  of  Kohleh, 
"Indisches  Ehe-  und  Familienrecht,"  ZVR.,  Ill,  342-442,  who  differs  on  some  im- 
portant points ;  and  Scheader,  Sprachvergleichung  und  Urgeschichte,  381  ff.  The 
"rich  presents"  referred  to  consisted,  in  case  of  actual  purchase,  of  one  hundred 
cows;  and  Leist,  op.  cit.,  128,  notes  the  coincidence  of  this  number  with  one  hundred 
beeves  mentioned  by  Homee,  Iliad,  xi,  1.  244. 

2  See  A2}astamba,  II,  6, 13, 12. 

3  But  Manu  is  not  always  consistent  regarding  the  legality  of  the  actual  bride- 
money  ;  see  Ordinances,  IX,  93 :  Buenell  and  Hopkins,  260  n.  7 ;  and  of.  Kohlee, 
"Indisches  Ehe-  und  Familienrecht,"  ZVR.,  Ill,  345  n.  8. 

4BUENELL,  AND  HopKiNS,  Ordinances  of  Manu,  Lect.  Ill,  20,  21,  24,  31,  41  ff., 
47-50.  "This  form  is  also  practiced  at  the  present  day  by  people  claiming  to  be 
Brahmans,  e.g.,  the  Caiva  Brahmans,  called  'Gurukkal,'  in  southern  India,  who 
seldom  can  get  wives  for  less  than  a  thousand  rupees.  It  often  happens  that  low- 
caste  girls  are  palmed  off  on  them."— /6id.,  49  n.  2.  Cf.  Jolly,  Hindu  Law  of 
Partition,  73-76,  for  a  discussion  of  the  marriage  forms ;  idem,  Ueber  die  rechtliche 
Stellung  der  Frauen,  15-18. 

5 One  of  the  eight  marriage  forms  mentioned  by  Manu  with  approval:  The  "gift 
in  due  form  of  a  maiden  is  called  the  Arsha  rite,  when  a  pair  or  two  of  cattle  have 
been  legally  received  from  the  bridegroom."— Btjenell  and  Hopkins,  op.  cit..  Ill, 
29,  48,  49.  Cf.  Jolly,  op.  cit.,  16;  Leist,  Alt-arisches  Jus  Gentium,  130-33,  for  the 
consequences  of  disapproval  of  capture ;  and  for  the  transformation  of  the  purchase- 
price  into  the  Qulka  institution  or  dower,  ibid.,  501  ff. 

^Westeemaeck,  op.  cit.,  396;  Dubois,  A  Description  of  the  Character,  Manners, 
and  Customs  of  the  People  of  India  (Madras,  1862),  102;  cf.  Buenell  and  Hopkins, 
op.  cit.,  49  n.  2. 


Rise  of  the  Marriage  Contract  199 

The  custom  of  rendering  a  compensation  for  a  wife, 
Aristotle  tells  us,  was  prevalent  in  ancient  Greece.'  The 
bride-price  consisted  of  "countless  gifts ;"^  and  in  the 
Homeric  age  a  maid  was  called  "one  who  yields  to  her 
parents  many  oxen  as  presents  from  her  suitor."^  The 
Roman  marriage  by  coemptio  was  a  conveyance  of  the  bride 
to  the  bridegroom  through  the  mancipatory  process  in  essen- 
tially the  same  way  as  a  slave  or  an  ox  was  sold.  Gains  calls 
it  an  "imaginary  sale;"*  and  it  is  usually  regarded  as  a 
reminiscence  of  actual  wife-purchase  among  the  primitive 
Romans  or  their  ancestors.^  Moreover,  in  marriage  by  usiis 
the  husband  gained  full  control  of  the  wife  by  a  year's  pre- 
scription, exactly  as  in  the  case  of  any  property.® 

Herodotus  mentions  wife-purchase  as  a  Thracian  custom  ;^ 
and  until  very  recently  it  was  also  practiced  by  the  Slavs. ^ 
The    bazar    of    Babylon,®  where,   according    to    Herodotus, 

1  Akistotle,  Politics,  II,  viii.    Compare  Hruza,  Ehebegrundung,  8  fF. 

2eSva  anepeiaia:  Iliad,  xvi,  1.178;  Odyssey,  xix,  1.529.  Iliad,  xi,  11.  244  f.,  men- 
tions one  hundred  oxen  as  the  price.  Cf.  Leist,  op.  cit.,  128;  Scheader,  Sprach- 
vergleichung  und  Urgeschichte,  381,  382. 

3 " Alphesiboia " :    Iliad,  xviii,  1.  593;    cf.  Westeemaeck,  op.  cit.,  396;    and 

SCHEADEE,  op.  cit.,  381. 

*  PosTE,  Gains,  1, 113,  88,  and  the  editor's  notes,  89  £f . 

5  It  is  so  regarded  by  Sohm,  Institutes  of  Roman  Latv,  361  n.  3;  by  Westee- 
maeck, op.  cit.,  397;  Scheadee,  op,  cit.,  382.  Rossbach,  Die  rdmische  Ehe,  65  £E.,  93, 
145,  245  £E.,  holds  that  there  was  one  original  form  from  which  both  coemptio  and 
confarreatio  were  derived,  and  that  it  combined  purchase  with  religious  elements. 
Kaelowa,  Die  Formen  der  rdm.  Ehe,  Iff.,  45.,  criticises  Rossbach  and  holds  that  it 
remains  to  be  proved  that  coemptio  is  a  survival  of  real  purchase,  it  being  more 
likely  a  particular  use  of  mancipatio  arising  perhaps  under  Servius  TuUius ;  but 
Leist,  op.  cif.,  128  ff.,  rejects  this  view  and  favors  the  theory  of  survival.  Lange, 
ROmische  Alterthiimer,  I,  105,  106;  and  BeenhOft,  Rdmische  KOnigszeit,  186,  are  in 
practical  agreement  with  Karlowa.  Cf.  Poste,  Gains,  89  ff.;  Muiehead,  Private 
Law  of  Rome,  441-43,  who  rejects  the  theory  of  survival;  Letoueneau,  Uivolntion 
du  manage,  149,150;  Monlezun,  Femme  mariie,  28-30. 

6  See  Lubbock,  Origin  of  Civilization,  74,  who  compares  usus  and  coemptio.  Cf, 
Poste,  Gains,  I,  §111,  p.  88;  Letoueneau,  op,  cit.,  150. 

'Heegdotus,  V,  6:  Rawlinson,  III,  180. 

sKeauss,  Sitteund  Branch  der  SUdslaven,  272,  275;  Kovalevsky,  Mod.  Customs 
and  Anc.  Laws  of  Russia,  26  fE.  It  existed  among  the  Russians,  Bohemians,  and 
Pomeranians :  Westeemaeck,  op.  cit.,  397  n.  6,  and  the  authorities  there  cited ;  but 
TuENEE,  Slavisches  Familienrecht,  16  ff.,  22,  denies  the  former  existence  of  purchase. 

9HEEODOTUS,  i,  196:  Rawlinson,  I,  262,  263. 


200  Matrimonial  Institutions 

girls  were  publicly  sold  in  marriage,  found  its  counterpart 
not  long  since  in  the  maiden-market  of  the  Roumanian 
Gainaberg.'  The  ancient  laws  of  Ireland  reveal  it  in 
curious  relation  to  wife-capture.  The  legitimate  wife  is  the 
wife  who  is  bought.  At  the  first  marriage  the  full  coibche, 
or  bride-price,  is  paid  to  the  father;  at  the  second,  the  bride 
receives  one-third ;  and  at  each  succeeding  marriage  a  grad- 
ually increasing  portion  falls  to  her  share.^  Marriage  by 
abduction  is  illegal.  In  that  case  children  begotten  during 
the  first  month  belong  to  the  wife's  family,  though  they  may 
be  conveyed  to  their  father  for  a  composition ;  and  to  such 
conveyance  he  is  legally  entitled,  when  the  abduction  takes 
place  with  the  woman's  consent.  After  the  first  month  the 
relation  between  husband  and  wife  is  partially  legalized. 
The  children  begotten  thereafter  belong  to  their  father, 
though  they  are  really  illegitimate  and  hence  not  entitled  to 
full  rights  of  inheritance.  Furthermore,  a  gift  from  the  wife 
to  the  husband  is  void.  But  every  defect  in  the  marriage  is 
at  once  cured  by  payment  and  acceptance  of  the  coibche.  In 
case  the  price  cannot  be  arranged  the  family  of  the  wife  are 
entitled  to  damage.  They  may  demand  that  another  woman 
be  placed  at  their  disposal  for  an  equal  term ;  or  they  may 
exact  a  partnership  share  in  the  earnings  of  the  abductor.^ 

1  KOHLEE,  "  Der  Madchenmarkt  auf  dem  Gainaberg,"  ZVR.,  VI,  398-400.  The 
bride-price  was  represented  by  the  presents  tendered  by  the  wooer.  "Einst  brachten 
die  Eltern  ihre  heirathsfahigen  TOchter  (fetele)  sammt  der  Mitgift  auf  den  Berg,  wo 
die  Manner,  die  petitori,  um  sie  warben ;  die  Madchen  sassen  dabei  auf  ihrer  Mitgift 
Oder  standen  hinter  derselben.  Der  Kauflustige  bot  Geschenke  und  wurde  mit  den 
Eltern  einig;  der  Frauenkauf  war  bereits  ins  donatorische  Stadium  getreten." 
Kohler  finds,  in  certain  customs  connected  with  the  market,  relics  of  promiscuity 
and  wife-capture. 

2 "Der  Vater  erhielt  das  voile  Coibche  bei  der  ersten  Ehe  der  Tochter,  bei  dert 
zweiten  |,  bei  der  dritten  1,  und  so  fort  bis  zu  5*1 ;  der  Rest'scheint  der  Tochter  zuge- 
f alien  zu  sein ;  eine  weitere  verhaltnissmassige  Gabe,  welche  ebenf alls  nach  Anzahl 
der  Ehen  sich  verkleinerte,  kam  dem  Haupte  der  Familie  zu." — Kohlee,  in  ZVR., 
V,  363;  O'CuEETf,  Manners  and  Customs  of  the  Ancient  Irish;  Sullivan,  Int.,  I, 
clxxiii  £E. ;  Ancient  Laws  of  Ireland,  III,  315. 

SKOHLEE,  in  ZVR.,  V,  363,  364 ;  Ancient  Laws  of  Ireland,  III,  401,  405,  541-45.  In 
the  early  laws  of  Wales  the  coivyll  corresponds  to  the  Irish  coibche,  but  it  is 
already  transformed  into  a  dotal  portion:  Kohlee,  op.  cit.,  365,  366. 


Rise  of  the  Marriage  Contract  201 

Finally,  it  may  be  noted,  that  traces  of  wife-purchase  are 
found  in  every  branch  of  the  Germanic  race.  Nowhere,  per- 
haps, can  the  evolution  of  the  marriage  contract  in  all  its 
phases  be  studied  with  more  satisfaction  than  in  the  history 
of  our  own  ancestors.  The  subject  will,  therefore,  be  further 
considered  in  a  later  chapter. 

III.       THE    antiquity   OF    SELF-BETROTHAL    OR    FREE 
MARRIAGE 

We  have  now  traced  in  broad  outline  the  extent  of  wife- 
purchase,  and  studied  its  general  character  and  its  principal 
forms.  It  appears  essentially  as  a  real  contract  of  sale 
between  third  parties.  Technically,  at  least,  the  bride  and 
sometimes  the  bridegroom  have  nothing  to  do  with  the 
transaction.  We  have  seen  incidentally  that  the  purchase- 
contract  tends  to  become  a  ceremonial  conveyance,  and  the 
bride-price  to  disappear  in  the  dower.  This  transition  is  a 
fact  of  great  social  and  legal  import,  and  must  therefore 
receive  further  attention.  But,  first,  another  question  of 
interest  arises:  What  is  the  place  of  wife-purchase  in  the 
evolution  of  human  sexual  relations  ?  If  it  was  not  preceded 
by  wife-capture  as  a  general  phase,  is  it  the  primitive 
method  of  contracting  marriage?  Or,  to  resolve  the  ques- 
tion into  a  more  convenient  form,  what  is  the  antiquity  of 
mutual  agreement  as  the  basis  of  matrimonial  union  between 
a  man  and  a  woman? 

On  its  face,  marriage  by  purchase  appears  as  an  institu- 
tion which  could  arise  only  after  considerable  sociological 
and  mental  progress  had  been  made.  It  implies  relatively 
advanced  ideas  of  property  and  social  organization.  Pre- 
cisely the  same  is  true,  in  a  less  degree,  of  wife-stealing, 
particularly  of  the  systematic  capture  of  women.  It  implies 
for  one  thing  an  appreciation  of  the  economic  value  of 
woman's  services  which  is  wholly   inconsistent  with   most 


i 


202  Matrimonial  Institutions 

primitive  conditions.  There  are  strong  indications  that  in 
the  beginning  of  distinctly  human  history  marriage  arose  in 
the  mutual  consent  of  the  parties.  Nay,  to  discover  the 
prototype  of  the  primitive  matrimonial  contract  it  may  be 
necessary  to  cross  the  boundary-line  which  separates  man 
from  the  lower  animals.  This  fact  seems  to  have  been  too 
much  neglected  by  writers  on  the  history  of  marriage.  Post, 
indeed,  throws  out  a  significant  suggestion.  Among  very 
low  races,  he  says,  betrothal  is  a  compact  between  the  bride 
and  the  bridegroom.  As  soon,  however,  as  the  genealogical 
organization  is  further  developed,  marriage  is  changed  from 
an  individual  relation  to  a  relation  between  families,  and  the 
betrothal  becomes  a  compact  between  the  kindred  groups. 
With  the  decay  of  the  gentile  constitution  marriage  and 
betrothal  gradually  become  again  an  individual  matter;  so 
that  in  this  regard  the  lowest  and  the  highest  stages  of 
culture  present  the  same  phenomena.* 

Here  we  have  the  general  phases  of  evolution  correctly 
indicated,  though  the  author  lays  too  much  stress  on  the 
influence  of  the  gentile  system.  But  the  view  we  have 
expressed  is  sustained  in  a  remarkable  way  by  the  elaborate 
researches  of  Westermarck.  In  a  series  of  chapters  he  has 
put  it  almost  beyond  question  that  a  wide  liberty  of  sexual 
choice  on  the  part  of  the  female  is  the  rule  among  primitive 
men  as  it  is  among  the  lower  animals.^  Everywhere,  with 
few  exceptions,  the  male  appears  as  the  wooer.  In  the 
female  passion  is  less  eager.'  She  therefore  requires  court- 
ing, and  thus  in  effect  she  secures  the  chief  place  in  the 
function  of  sexual  selection.  Even  in  the  case  of  the  repro- 
ductive cells  of  plants,  where  any  external  difference  has 

1  Post,  Familienrecht,  158 ;  Afrikanische  Jurisprudenz,  I,  377,  378,  where  will  be 
found  examples  of  peoples  among  whom  free  betrothal  exists. 

2  Westermaeck,  Human  Marriage,  chaps,  vii-xiii,  inclusive. 

3  Daewin,  Descent  of  Man,  chap,  viii,  222  ff. ;  Espinas,  Des  socUUs  atilmales 
323  S.    Cf.  Gboos,  Die  Spiele  der  Thiere,  129  £E. 


Rise  of  the  Marriage  Contract  203 

been  observed,  "  the  male  cell  behaves  actively  in  the  union, 
the  female  passively;"  and  the  same  law  prevails  among 
lowly  organized  animals.'  In  general,  animals  contend  in 
some  sort  of  rivalry  for  their  mates.  Even  the  most  timid 
during  the  season  of  love  "engage  in  desperate  combats 
with  each  other  for  the  possession  of  the  female,  and  she, 
although  comparatively  passive,  nevertheless  often  exercises 
a  choice,  selecting  one  of  the  rivals."  Fighting  for  mates 
"occurs  even  among  insects,  and  is  of  universal  prevalence 
in  the  order  of  the  vertebrata."^  This  method  of  courtship, 
not  to  be  confused  with  capture,  may  also  have  prevailed 
among  "our  primeval  human  ancestors,"  and  it  still  exists 
in  many  forms.  Sometimes  a  fist-fight,  a  battle  with  clubs, 
a  duel  with  bows  and  arrows,  or  a  "pulling-match"  settles 
the  claims  of  rival  suitors;  and  often,  as  among  the  North 
American  aborigines,  the  contest  takes  the  form  of  "wrestling 
for  wives.  "^ 

But  animals  have  other  means  of  wooing  their  mates. 
To  this  end  the  male  in  a  much  higher  degree  than  the 
female  is  provided  with  certain  notes  or  calls,  strong  odors, 
beautiful  top-knots,  fine  plumes,  brilliant  colors,  or  similar 
ornaments.  Even  with  the  most  pugnacious  species  of 
birds,  says  Darwin,  "it  is  probable  that  the  pairing  does 
not  depend  exclusively  on  the  mere  strength  and  cour- 
age of  the  male;  for  such  males  are  generally  decorated 
with  various  ornaments,  which  often  become  more  brilliant 
during  the  breeding  season,  and  which  are  sedulously  dis- 
played before  the   females.      The  males  also  endeavor  to 

1  Westeemarck,  op.  cit.,  157 ;  Sachs,  Text-Book  of  Botany,  897 ;  D akwin,  op.  cit., 
chap,  yiii;  Kclischer,  Die  oeschlechtliche  Zuchtwahl,  in  ZFE.,  VIII,  140  ff.,  who 
regards  the  dance  as  originally  a  form  of  wooing.  Such  is  also  the  view  of  Espinas, 
op.  cit..,  305  ff. ;  and  Geoos,  op.  cit.,  257  ff.,  263  ff. 

2  Westeemarck,  op.  cit.,  159,  253;  Darwin,  op.  cit.,  chap,  xiii;  Wallace,  Dar- 
winism, 282  ff . 

sMaetius,  Rechtszustande,  589;  idem.  Ethnographic,  I,  111;  Waitz,  Anthro- 
pologic, III,  101 ;  Darwin,  op.  cit.,  chap,  xix,  561  ff. ;  Lubbock,  Origin  of  Civiliza- 
tion, 101  ff. ;  and  especially  Westeemaeck,  op.  cit.,  159-63,  who  gives  many  examples. 


204  Matrimonial  Institutions 

charm  their  mates  by  love-notes,  songs,  and  antics ;  and  the 
courtship  is,  in  many  instances,  a  prolonged  affair.  Hence 
it  is  not  probable  that  the  females  are  indifferent  to  the 
charms  of  the  opposite  sex,  or  that  they  are  invariably  com- 
pelled to  yield  to  the  victorious  males.  It  is  more  probable 
that  the  females  are  excited,  either  before  or  after  the  con- 
flict, by  certain  males,  and  thus  unconsciously  prefer  them."* 
Such  colors,  love-songs,  and  ornaments  belong  to  what  Darwin 
calls  the  "secondary  sexual  characters."  For,  in  the  sexual 
selection,  the  "struggle  is  of  two  kinds;  in  the  one  it  is  be- 
tween the  individuals  of  the  same  sex,  generally  the  males,  in 
order  to  drive  away  or  kill  their  rivals,  the  females  remaining 
passive ;  whilst  in  the  other,  the  struggle  is  likewise  between 
the  individuals  of  the  same  sex,  in  order  to  excite  or  charm 
those  of  the  opposite  sex,  generally  the  females,  which  no  longer 
remain  passive,  but  select  the  more  agreeable  partners."^ 
These  characters,  he  thinks,  depend  upon  the  aesthetic  sense 
of  the  females.  "Just  as  a  man  can  give  beauty,  according 
to  his  standard  of  taste,  to  his  male  poultry,  or  more  strictly 
can  modify  the  beauty  originally  acquired  by  the  parent 
species,  ....  so  it  appears  that  female  birds  in  a  state  of 
nature,  have  by  a  long  selection  of  the  more  attractive  males, 
added  to  their  beauty  or  other  attractive  qualities."'  Bril- 
liant colors,  for  instance,  have  thus  been  acquired  by  birds 
and  insects  because  they  are  "beautiful  or  otherwise  agree- 
able, whereas  the  characters  resulting  from  natural  selection 
have  been  acquired  because  they  are  useful."  Hence  "far 
from  co-operating  with  the  process  of  natural  selection, 
sexual  selection,  as  described  by  Mr.  Darwin,  produces  effects 
disadvantageous  to  the  species;"*  for  many  of  the  second- 
ary characters  are  a  source  of  danger.^     But  Wallace,  in  his 

1  Daewtn,  op.  cit.,  chap,  xiii,  367 ;  chap,  viii,  214  (prolonged  courtship  of  animals). 
Cf.  Westeemaeck,  op.  cit.,  159. 

2DAEWIN,  op.  cit.,  chap,  xxi,  614.  ^Ibid.,  chap,  viii,  211;  <■/.  ibid.,  496,  554. 

*  Westeemaeck,  op.  cit.,  241.  sDaewin,  op.  cit.,  chap,  xvi,  496. 


Rise  of  the  Marriage  Contract  205 

well-known  criticism  of  Darwin,'  has  established  a  proba- 
bility that  their  primary  purpose  is  not  aesthetic,  but  utili- 
tarian. "The  fundamental  or  ground  colors  of  animals," 
he  says,  "are  very  largely  protective;"  and  these  are  ex- 
tended in  the  line  of  the  greatest  structural  and  nervous 
development.^  They  are  therefore  an  evidence  of  a  surplus 
of  nervous  energy,  which  is  especially  active  at  the  excitable 
period  of  courtship.  So  far  as  the  female  exercises  a  choice, 
it  is  not  because  the  males  are  beautiful,  but  because  they 
are  "the  most  vigorous,  defiant,  and  mettlesome."  The 
view  of  "Wallace  is  supported  in  the  main  by  that  of  Wester- 
marck,  who  especially  emphasizes  the  fact  that  colors  and 
the  other  secondary  characters  are  "  upon  the  whole  advan- 
tageous, inasmuch  as  they  make  it  easier  for  the  sexes  to 
find  each  other."  They  exist  to  be  seen.  By  association 
of  ideas  it  is  natural  that  the  females  should  find  them 
pleasing,  for  to  them  they  are  the  "symbols  of  the  most 
exciting  period  of  their  lives."*  Furthermore,  "the  greatest 
advantage  is  won  with  the  least  possible  peril;"  for  "usually 
they  occur  in  males  only,  because  of  the  females'  greater 
need  of  protection.  They  are  not  developed  till  the  age  of 
reproduction,  and  they  appear,  in  a  great  many  species,  only 
during   the   pairing  season."  *     It  follows,   therefore,   that 

1  Wallace,  Darwinism,  268-300 ;  also  his  Tropical  Nature,  221-48. 

2  Accepting  Tyloe's  results  in  Coloration  of  Animals  and  Plants  (London,  1886). 

3  Westeemaeck,  op.  cit.,  252,  249.  Wallace  has  also  noted  the  use  of  colors  as 
a  means  of  recognition :  Darwinism,  217  £f. ;  and  admits  that  the  sexual  colors  may 
become  pleading  to  the  females,  though  they  may  be  devoid  of  an  aesthetic  sense. 
This  alleged  inconsistency  is  criticised  by  Poclton,  Colours  of  Animals,  286. 

*  Westeemaeck,  op.  cit.,  240-52,  especially  241,  244,  251,  252. 

For  a  comparison  of  the  different  theories  of  sexual  selection  see  Geddes  and 
Thompson,  Evolution  of  Sex,  3-30,  who  think  the  truth  lies  between  the  views  of 
Darwin  and  Wallace;  Poulton,  op.  cit.,  284-335,  who  sustains  Darwin's  view;  and 
FiNCK,  Primitive  Love,  229  ff.,  who  attempts  "  to  demolish  the  theory  of  sexual  selec- 
tion in  reference  to  the  lower  races  of  man  as  Wallace  demolished  it  in  reference  to 
animals."  Cf.  EsprNAS,  Des  soci6t6s  animates,  290  ff. ;  Brooks,  Law  of  Heredity  (1883), 
166-241 ;  Geoos,  Die  Spiele  der  Thiere,  230  ff.,  267  ff.,  who  takes  a  medial  position 
between  Darwin  and  Wallace ;  Weismann,  Studies  in  the  Theory  of  Descent  (London, 
1882),  I,  161  ff.;  EiMEE,  Die  Entstehunrj  der  Arten  (1888);  and  Geddes,  articles 
"Reproduction,"  "  Sex,"  "  Variation  and  Selection,"  in  Encycl.  Brit. 


206  Matrimonial  Institutions 

sexual  selection  is  but  another  aspect  of  natural  selection, 
and  the  secondary  sexual  characters  are  perpetuated  in  har- 
mony with  the  law  of  survival  of  the  fittest.  Whichever 
view  is  accepted,  the  fact  with  which  we  are  especially  con- 
cerned remains:  the  female  exercises  the  function  of  choice. 
Turning  now  to  the  human  race,  we  find  that  the  same 
law  prevails.  Savage  and  barbarous  men  are  passionately 
fond  of  self-decoration  and  display.  "There  are  peoples," 
says  Westermarck,  "destitute  of  almost  everything  which 
we  regard  as  necessaries  of  life,  but  there  is  no  people 
so  rude  as  not  to  take  pleasure  in  ornaments;"  and  he 
quotes  Spencer's  remark  that,  great  as  is  the  vanity  of  the 
civilized,  it  is  exceeded  by  the  vanity  of  the  uncivilized.' 
Every  sort  of  decoration  is  in  use.  Attention  is  paid 
especially  to  the  arrangement  of  the  hair.  The  body  is 
disfigured  or  transformed  in  a  variety  of  ways.  The  ears, 
nose,  or  cheeks  are  pierced  or  bored,  and  rings  or  other 
ornaments  inserted.  The  teeth  are  colored  or  otherwise 
mutilated;  and  the  body  is  scarred,  painted,  or  tattooed.^ 
Now  it  is  demonstrated  by  wide  observation  that  the  pri- 

1  Westeemaeck,  op.  cit.,  165;  Spencee,  Principles  of  Sociology,  I,  71,72.  Cf. 
Daewin,  op.  cit.,  I,  chap,  six,  573  ff.,  556-85,  for  a  general  discussion  of  the  "second- 
ary sexual  characters  of  man." 

2  Westeemaeck,  op.  cit.,  168-82,  holds  that  tattooing  is  primarily  a  means  of 
sexual  attraction.  The  same  is  true  of  circumcision,  201-6;  and  of  clothing,  186-212. 
The  facts  "  appear  to  prove  that  the  feeling  of  shame,  far  from  being  the  original 
cause  of  man's  covering  his  body,  is,  on  the  contrary,  a  result  of  this  custom." 
When  not  due  to  climate,  it  "owes  its  origin,  at  least  in  a  grreat  many  cases,  to  the 
desire  of  men  and  women  to  make  themselves  mutually  attractive,"  211.  But  see 
Hellwald,  Die  menach.  Familie,  60-96,  who  ascribes  clothing,  not  to  shame,  but 
the  love  of  ornament ;  and  Finck,  Primitive  Love,  247  ff.,  who  entirely  rejects  Wester- 
marck's  view,  alleging,  as  a  matter  of  fact,  that  tattooing  "  has  had  from  the  earliest 
recorded  times  more  than  a  dozen  practical  purposes,  and  that  its  use  as  a  stimu- 
lant of  the  passion  of  the  opposite  sex  probably  never  occurred  to  a  savage  until  it 
was  suggested  to  him  by  a  philosophizing  visitor."  On  circvuncision  see  Kohlee, 
in  ZVR.,  XI,  429,  430;  VI,  417-19,  reviewing  Wilken,  De  besnijdenis  bij  de  volken  van 
den  Indischen  Archipel  (1885) ;  Ploss,  Das  Kind,  I,  342  ff.,  367  ff. ;  Hellwald,  op. 
cit.,  362;  Lippeet,  Kulturgeschichte,  II,  317,  who  believes  circumcision  originated  as 
a  form  of  expiation.  Ceawley,  Mystic  Rose,  135  ff.,  regards  tattooing,  circumcision, 
and  other  mutilations,  not  as  ornaments,  but  as  "practically"  amulets  or  charms  to 
secure  the  safety  of  organs  and  functions. 


KisE  OF  THE  Marriage  Contract  207 

mary  purpose  of  self-decoration  is  the  stimulation  of  sexual 
passion.  In  all  parts  of  the  world  the  desire  for  it  "  is 
strongest  at  the  beginning  of  the  age  of  puberty,"  all  such 
customs  "  being  practiced  most  zealously  at  that  period  of 
life."*  The  "common  notion  that  women  are  by  nature 
vainer  and  more  addicted  to  dressing  and  decorating  them- 
selves than  men  "  does  not  hold  good,  at  any  rate  for  savage 
and  barbarous  peoples.  The  females  are,  of  course,  often 
fond  of  adornment,  in  this  way  trying  to  please  or  attract 
their  lovers.  In  some  cases  tattooing  is  practiced  "  exclu- 
sively or  predominately"  by  the  women,  and  "the  men 
sometimes  wear  fewer  ornaments;"  but  as  a  general  rule  it 
is  the  man  who  shows  the  greater  desire  to  beautify  himself 
as  a  means  of  gaining  the  favor  of  the  opposite  sex.^  The 
woman  requires  to  be  wooed,  for  she  is  more  fastidious  than 
man  in  the  choice  of  a  mate.  "A  Maori  proverb  says,  'Let 
a  man  be  ever  so  good-looking,  he  will  not  be  much  sought 
after;  but  let  a  woman  be  ever  so  plain,  men  will  still  eagerly 
seek  after  her.'"^  Besides,  it  is  remarked  that  "very  gen- 
erally among  the  lower  races,  the  females  are  even  more 
unattractive  in  aspect  than  the  males."*  But  both  sexes 
co-operate  in  the  process  of  selection ;  and  as  social  institu- 
tions are  developed  man  shares  in  it  more  and  more.  In 
this  way  are  transmitted  the  distinctive  mental  and  physical 
characteristics  of  each  race  which  are  necessary  to  its  sur- 
vival, and  upon  which  its  standard  of  beauty  depends.^ 

iThis  conclusion  of  Westermarck  is  disputed  by  Finck,  op.  cit.,  261  ff. 

2  Westeemaeck,  op.  cit.,  173  ff.,  182  ff.  Cf.  Darwin,  op.  cit.,  577  ff.,  597  ff.,  who 
thinks  women  among  savages  are  fonder  of  ornament  than  men;  but  the  context 
shows  that  he  does  not  refer  to  our  "  progenitors." 

3  Westeemaeck,  op.  cit.,  253.  D.iEWix,  op.  cit.,  chap,  xx,  596  ff.,  holds  this  view, 
in  the  case  of  the  "  secondary  sexual  characters,"  for  our  "  progenitors." 

*Spencee,  op.  cit,  I,  717;  cf.  Westeemaeck,  op.  cit.,  273,  277,  278. 

*That  standards  of  beauty  depend  upon  racial  difference  is  urged  by  Westee- 
maeck, chap,  xii,  especially  273  ff.,  against  Daewin,  op.  cit.,  chap,  xx,  595-99,  who 
holds  that  racial  differences  are  due  to  different  standards  of  beauty.  On  female 
beauty  and  ideals  of  beauty  among  all  races  see  Floss's  fuU  and  interesting  dis- 
cussion: Das  lFei6, 1,  59-124. 


208  Matrimonial  Institutions 

If  the  law  of  sexual  selection  has  been  rightly  stated,  it 
would,  indeed,  be  strange  if  women  among  low  races  should 
not  preserve  some  liberty  of  choice  in  marriage.  In  the 
savage  state,  says  Darwin,  man  keeps  woman  in  a  far  more 
abject  position  "than  does  the  male  of  any  other  animal;" 
and  hence  it  is  not  surprising  that  "he  should  have  gained 
the  power  of  selection."*  But  it  must  not  be  forgotten  that 
even  the  lowest  races  of  which  we  have  any  knowledge  have 
advanced  far  beyond  the  primordial  state  of  man.  Darwin 
himself  comes  to  the  conclusion,  after  examining  the  evi- 
dence, that  savage  "women  are  not  in  quite  so  abject"  a 
condition  as  is  commonly  supposed;^  and  the  facts  show  that 
in  a  vast  number  of  cases  they  have  a  decisive,  though  not 
always  a  legal,  voice  in  the  choice  of  a  husband. 

According  to  Post,  the  right  of  assent  is  subject  to  the 
following  principal  variations :  ^  (1)  Among  a  large  number 
of  peoples  the  contract  or  bethrothal  is  made  by  the  parents 
or  relatives,  no  regard  at  all  being  had  to  the  will  either  of 
the  bride  or  bridegroom.*  Infant-marriage  or  betrothal,  in 
particular,  is  of  frequent  occurrence;  and  sometimes  chil- 
dren are  promised  even  before  they  are  born.  Naturally 
such  engagements  are  often  merely  contracts  of  sale;  but 
usually  they  have  a  deeper  social  significance  as  a  means  of 
extending  and  more  firmly  knitting  the  bonds  of  family  or 
gentile  union.  This  custom  implies  something  more  than 
mere  brutal  indifference  to  the  wishes  of  the  children ;  and, 
besides,  it  serves  the  ethical  purpose  of  restricting  the  sexual 

1  Daewin,  op.  cit.,  chap,  xx,  597. 

2  Ibid.,  chap.  XX,  597-99. 

3  Post,  Familienrecht,  166-71, 163, 157  ff. 

*  In  such  cases  the  right  of  betrothal  belongs  cither  to  the  parents,  to  the 
families,  or  to  particular  relatives,  as,  for  instance,  to  the  mother,  eldest  brother,  or 
maternal  uncle  of  the  bride:  Post,  i^amiZienrecTii,  162-64, 166, 167 ;  idem,  Anfdnge 
des  Staats-  U7id  Rechtslebens,  32,  33.  See  Westeemaeck,  op.  cit.,  213-15,  notes,  for 
examples.  In  West-Australia  the  consent  of  the  whole  tribe  is  necessary  to  a  girl's 
marriage:  Westeemaeck,  215;  Kohlee,  in  ZVR.,  Ill,  357 ff.;  VI,  398. 


Rise  op  the  Marriage  Contract  209 

liberty  of  the  bride.  ^  Such  a  contract  is  not  always  legally 
binding  upon  the  children,  especially  the  bridegroom ;  and 
when  it  is  binding,  the  betrothed  often  disregard  it,  or  the 
bride  runs  away  with  another  man.^  (2)  In  some  cases  the 
consent  of  the  bride  alone  is  ignored;'  (3)  in  others  her 
approval  is  asked  'pro  forma,  but  refusal  never  occurs  and 
would  not  be  tolerated;*  (4)  or  the  choice  may,  in  fact,  be 
left  to  the  young  man  and  woman,  while  the  right  of 
betrothal  belongs  to  the  guardian.  With  the  Bataks  of 
Sumatra,  for  instance,  vows  and  pledges  are  exchanged  by 
the  lovers ;  and  in  case  the  girl  is  betrothed  by  her  parents 
against  her  will,  she  may  run  away  to  the  giver  of  the  love- 
pledge,  who  is  then  compelled  to  receive  her.  A  similar 
rule  prevails  in  Timor  and  among  the  Tscherkese  of  Asia 
Minor.^  Sometimes  (5)  the  young  people  are  legally  bound 
to  submit  to  the  choice  of  the  guardian  only  in  case  of  the 
first  marriage,  which,  accordingly,  is  often  dissolved  after  a 
few  years  or  even  a  few  months;  while  the  second  marriage, 
being  usually  a  marriage  of  inclination,  may  long  endure.® 

1  According  to  Post,  Familienrecht,  205,  the  purpose  is  always  Familienver- 
bindungen  anzuknUpfen ;  and  usually  the  betrothed  bride  is  held  strictly  to  a  life 
of  chastity,  even  among  peoples  where  such  is  not  the  custom  for  girls :  Post,  op. 
cit.,  212,  213;  Lippekt,  Geschichte  der  Familie,  149, 150.  Of  this,  good  examples  are 
found  in  the  South  Sea:  Kohlek,  "Studien,"  ZVR.,  V,  356;  see  also  Staecke, 
Primitive  Family,  212,  256,  257;  Wake,  Marriage  and  Kinship,  78-80;  Post, 
Geschlechtsgenossenschaft,  80;  Ursprung,  57;  Anfange  des  Staats-  und  Rechtslebens, 
35;  Afrikanische  Jurisprudenz,  I,  365-71;  Westeemaeck,  op.  cit.,  213,  214.  On  early 
betrothals  see  further  Kohlee,  in  ZFJ?.,  V,  342,  (Aleuts);  VI,  166  (Burma) ;  VII,  352 
(Australia),  372  (New  Guinea);  X,  99-103,  116  (Bombay);  XI,  164  (India);  Spencee 
AND  Gillen,  Native  Tribes  of  Cent.  Australia,  558. 

2  Post,  Familienrecht,  213.  Of  course,  in  case  of  breach,  the  parents  or  other 
contracting  parties  are  subject  to  fine,  damage,  or  restitution,  in  a  variety  of  ways: 
ibid,,  214;  Westeemaeck,  op.  cit.,  224. 

3  Post,  Afrikanische  Jurisprudenz,  I,  362,  363,  gives  many  examples.  Cf.  idem, 
Familienrecht,  167. 

*  This  is  the  rule  among  Jackuts,  the  Sarts  of  Turkestan,  and  the  southern 
Slavs:  Post,  op.  cit.,  167, 168;  Keauss,  Sitte  und  Brauch  der  Siidslaven,  320. 

5  Post,  op.  cit.,  168, 169. 

6  Such  is  the  case  among  the  Menangkabaw  Malays  of  Sumatra;  and,  according 
to  Burmese  law,  the  woman  who  has  once  been  married  has  no  guardian :  Post,  op. 
cit,  169. 


210  Matrimonial  Institutions 

Again  (6),  even  among  such  rude  peoples  as  the  Timorlaut 
islanders,  the  consent  of  the  betrothed  is  sometimes  essen- 
tial to  a  valid  marriage ;'  and  still  more  striking  are  those 
cases  (7)  in  which  the  bride  and  bridegroom  themselves 
appear  as  the  contracting  parties,  the  right  of  assent  now 
belonging  to  the  parent  or  guardian.  The  legal  conditions 
are  thus  reversed. 

Free  marriage  in  one  or  the  other  of  these  forms  is  very 
widely  diffused,  though  it  may  not  always  be  possible  to 
determine  the  exact  legal  relation  of  the  guardian  and  the 
betrothed.^  Sometimes  self-betrothal  and  contract  by  the 
guardian  are  found  side  by  side.  Such  is  the  case  in 
Rotuma;  and  among  the  Turks  of  middle  Asia  the  conven- 
tional marriage,  in  which  the  couple  are  contracted  by  their 
fathers  in  childhood,  is  found  in  connection  with  natural 
marriage  which  rests  upon  the  vows  of  the  betrothed.^ 

IV.     primitive  free  marriage  surviving  with  purchase, 

AND  the  decay  OF  THE  PURCHASE-CONTRACT 

It  is  commonly  assumed  that  where  marriage  by  pur- 
chase exists  woman  must  necessarily  be  in  an  abject  condi- 
tion. The  "average  facts,"  says  Spencer,  "show  that  at 
first  women  are  regarded  by  men  simply  as  property,  and 
continue  to  be  so  regarded  through  several  later  stages: 
they  are  valued  as  domestic  cattle."*  Such  also  is  the 
opinion  of  Letourneau,  who  takes  a  very  pessimistic  view  of 
the  early  condition  of  woman.     During  a  long  period  her 

1  Post,  op.  cit.,  169. 

2  For  many  examples  in  America,  Africa,  Asia,  and  the  island  groups,  see 
Westeemaeck,  op,  cit.,  215-21;  Daewin,  op.  cit.,  chap,  xx,  597-99. 

3  Post,  op.  cit.,  158 ;  VAmb^ey,  Das  Turkenvolk  (1885),  229,  230. 

*  Spencer,  Principles  of  Sociology,  I,  748,  750.  Elsewhere  he  says :  "  The  only 
limit  to  the  brutality  women  are  subjected  to  by  men  of  the  lowest  races  is  the 
inability  to  live  and  propagate  under  greater ;  "  but,  he  adds,  savage  women  are  just 
as  selfish  and  just  as  cruel  as  men,  they  only  lack  the  power.  A  captured  or 
purchased  woman  is  an  "  absolute  possession."— 76td.,  I,  746-49. 


Rise  of  the  Marriage  Contract  211 

wishes  in  marriage  were  utterly  ignored.  The  sale  of 
women  and  children  for  slaves  or  wives  is  the  result  of  brute 
force  and  the  primitive  despotism  of  man.  Marriage  by 
purchase,  he  says,  "implies  a  profound  disdain  of  woman, 
her  complete  assimilation  to  movables,  to  cattle,  to  things 
in  general."'  Doubtless  among  low  races  the  lot  of  woman 
is  often  extremely  harsh  and  degraded.  The  examples 
already  given  demonstrate  that  she  is  sometimes  treated 
merely  as  an  object  of  sale  or  exchange ;  and  where  polygyny 
exists  wife-purchase  may  have  a  strong  tendency  to  reduce 
her  to  slavery.^  But  a  more  careful  examination  of  the 
evidence  proves  that  marriage  by  purchase  is  not  incon- 
sistent with  a  high  degree  of  matrimonial  choice  on  the  part 
of  the  woman.  As  already  suggested,  purchase  is  far  from 
being  the  original  method  of  contracting  marriage.  Like 
the  patriarchal  authority  in  general,^  by  which  the  liberty 
of  the  son  as  well  as  that  of  the  daughter  is  sometimes 
destroyed,  it  is  of  comparatively  late  origin,  arising  with  the 
institution  of  property  and  an  appreciation  of  the  economic 
value  of  labor.  "It  may  be  said  generally  that  in  a  state  of 
nature  every  grown-up  individual  earns  his  own  living. 
Hence  there  is  no  slavery,  as  there  is,  properly  speaking,  no 
labour."  A  man  then  had  no  reason  "to  retain  his  full-grown 
daughter;  she  might  go  away,  and  marry  at  her  pleasure."* 

1  Letoueneau,  VivoluUon  du  mariage,  150, 130  ff.  Kohlee,  in  ZVR.,  V.  338  fF. ; 
VI,  342,  343;  VIII,  242;  XI,  416,  423,  appears  to  take  the  same  position.  Cf.  also  his 
"Indisches  Ehe-  und  Familienrecht,"  ^Fi?.,  Ill,  357  ff. ;  and  Lubbock,  Origin  of 
Civilization,  99  ff. ;  Post,  Familienrecht,  201-5 ;  Friedkichs,  in  ZVR.,  VIII,  377,  notes ; 
BeenhOft,  in  ZVR.,  IV,  234 ;  idem,  Staat  und  Recht  der  rOm.  KQnigszeit,  196 ff. 

2  Wake,  Marriage  and  Kinship,  180, 183, 198  ff.,  holds,  against  Karnes,  that  even 
in  the  case  of  polygyny  the  evil  effects  of  purchase  may  be  exaggerated,  though 
they  are  often  bad. 

3  Westeemaeck,  op.  cit.,  223-35,  gives  a  detailed  discussion  of  the  paternal 
power  as  to  the  liberty  of  the  son.  Very  often,  though  not  so  generally  as  the 
daughter,  he  is  denied  freedom  of  choice  in  marriage. 

^Ibid.,  222.  Staecke,  Primitive  Family,  256,  257,  emphasizes  the  importance  of 
female  labor  in  early  marriage;  and  this  fact  is  well  established  by  Grosse  in  the 
book  already  analyzed. 


212  Matrim-onial  Institutions 

In  marriage  by  purchase  there  is  still  a  chance  for  the 
wooer;  and  the  unwilling  maiden  has  many  an  opportunity 
to  avoid  a  husband  whom  she  does  not  fancy.'  Elopement 
has  its  chief  significance  in  this  connection.  Instead  of 
being  necessarily  a  relic  of  wife-capture,  it  is  rather  the 
means  by  which  the  lovers,  particularly  the  bride,  maintain 
the  actual  right  to  dispose  of  themselves  in  marriage.^ 
Many  illustrations  of  this  fact  might  be  presented.  Among 
the  aborigines  of  North  and  South  America,  where,  as  we 
have  seen,  wife-purchase  and  even  wife-capture  are  common, 
woman  possesses  a  wide  liberty  of  choice.  In  arctic  regions 
the  wife  sometimes  runs  away  from  the  husband  forced  upon 
her  and  joins  her  lover;'  and  in  general  the  maiden  often 
thus  escapes  a  detested  suitor.  Such  is  the  case,  for  instance, 
among  the  Greenlanders,  Dakotas,  Caribs,  and  Patagonians  ;* 
while  among  the  Abipones,  according  to  DobrizhofPer,  when 
a  man  thinks  fit  to  choose  a  wife,  he  must  bargain  with  the 

1  On  the  place  of  the  wooer  in  wife-purchase  see  Leist,  Alt-arisches  Jv^  Gentium, 
130  ff.  What  Spencer  says  of  marriage  by  service  is  true  in  a  high  degree  of  mar- 
riage by  purchase  in  general:  Spencek,  op.  cit.,  I,  754,  755. 

2  On  the  radical  difference  between  elopement  and  capture  see  FisoN  and 
HowiTT,  Kamilaroi  and  Kurnai,  354,  343,  348-51 ;  and  compare  Ploss,  Das  Weib,  I, 
53,  54;  Westeemaeck,  op.  cit,  223. 

3  Daewin,  op.  cit.,  chap,  xx,  597,  598. 

Among  the  Point  Barrow  Eskimo  marriages  are  formed  for  "reasons  of  interest." 
Sometimes  a  wife  is  taken  against  her  will.  Yet  "  women  appear  to  stand  on  a 
footing  of  perfect  equality  with  the  men  both  in  the  family  and  in  the  community." 
The  "  wife  is  the  constant  and  trusted  companion  of  the  man  in  everything  except 
the  hunt,  and  her  opinion  is  sought  in  every  bargain  or  other  important  undertak- 
ing."— Muedoch,  in  IX.  Rep.  of  Bureau  of  Eth.,  410,  413,  414.  Cf.  Egede,  Greenland, 
144. 

*  Westeemaeck,  op.  cit.,  216,  9.  Captain  Mustees,  At  Home  with  the  Pator 
gonians  (1872),  afiBrms  that  the  finest  trait  of  the  Patagonian  "  Tehuelches  character 
is  'their  love  for  their  wives  and  children;  matrimonial  disputes  are  rare,  and  wife- 
beating  unknown ;  and  the  intense  grief  with  which  the  loss  of  a  wife  is  mourned 
is  certainly  not  'civilized,'  for  the  widower  will  destroy  all  his  stock  and  burn  all 
his  possessions,'  and  possibly  become  careless  of  his  life."  A  similar  affection  is 
shown  among  the  Eskimo,  who  are  also  polygynous :  Wake,  Marriage  and  Kinship, 
184, 185. 

Free  courtship  exists  among  the  Omahas:  Doeset,  "Omaha  Sociology,"  III. 
Rep.  of  Bureau  of  Eth.,  259,  260;  and  in  general  there  is  sometimes  individual  choice 
among  the  Siouan  peoples:  idem,  "Siouan  Sociology,"  ibid.,  XV,  178. 


Rise  of  the  Marriage  Contract  213 

parents  of  the  girl  about  the  price.  But  "  it  frequently  hap- 
pens that  the  girl  rescinds  what  had  been  settled  and  agreed 
upon  ....  obstinately  rejecting  the  very  mention  of  mar- 
riage. Many  girls,  through  fear  of  being  compelled  to 
marry,  have  concealed  themselves  in  the  recesses  of  the 
woods  or  lakes;  seeming  to  dread  the  assaults  of  tigers  less 
than  the  untried  nuptials.  Some  of  them,  just  before  they 
are  to  be  brought  to  the  bridegroom's  house,  fly  to  the 
chapel,  and  there,  hidden  behind  the  altar,  elude  the  threats 
and  the  expectation  of  the  unwelcome"  suitor.'  In  exactly 
the  same  way  she  gains  her  will  in  Tierra  del  Fuego,  where 
the  lover  serves  for  his  bride  ;^  and  among  the  same  people 
"the  eagerness  with  which  the  women  seek  for  young  hus- 
bands is  surprising,  but  even  more  surprising  is  the  fact  that 
they  nearly  always  attain  their  ends."^  The  Comanche 
suitor  must  buy  his  bride  of  her  parents;  but  unless  she 
manifests  her  willingness  by  leading  his  pony  into  the  stall, 
the  bargain  is  void.*  A  similar  freedom  in  choosing  her 
mate  is  asserted  by  the  woman  of  the  Pueblos,  Creeks, 
Chippewas,  and  various  other  tribes  f  while  the  existence  of 
real  affection  and  true  courtship  is  shown  by  the  fact  that 
suicide  sometimes  happens  on  account  of  disappointed  love.® 

1  DoBEizHOFFEE,  Account,  II,  207;  cf.  Daewin,  op.  cit.,  chap,  xi,  598;  and 
Ploss,  Das  Weib,  I,  53,  54 ;  Klemm,  Kulturgeschichte,  II,  75. 

2  Daewin,  op.  cit.,  chap,  xx,  598;  Westeemaeck,  op.  cit.,  216. 

3  Westeemaeck,  op.  cit.,  216,  and  authorities  there  cited. 

*  Ploss,  op.  cit.,  I,  53. 

5  Among  the  Kaniagmuts,  Thlinkets,  Nutkas,  and  the  South  American  Guanfts: 
Westeemaeck,  op.  cit.,  215, 216.  Divorce  is  free  among  the  South  American  Charuas : 
Daewin,  op.  cit.,  598.  For  evidence  of  courtship  and  consent  among  the  California 
Indians  see  Banceoft,  Native  Races,  I,  398,  411,  412.  Spencee,  op.  cit.,  I,  722,  723, 754, 
755,  discusses  the  favorable  position  of  women  among  the  American  aborigines  and 
elsewhere,  due  in  part  to  "  likeness  of  occupations  between  the  sexes."  For  further 
illustrations  of  freedom  of  choice  or  of  liberty  in  the  family  see  Peatz,  Hist,  de  la 
Louisiane,  II,  385,  389;  Waitz,  Anthropologic,  III,  101, 103;  Ratzel,  Hist,  of  Man- 
kind, II,  125, 128. 

6R1GGS,  "Dakota  Grammar,"  Cont.  N.  A.  Eth.,  IX,  206,  gives  an  example.  Cf. 
also  the  cases  mentioned  by  Westeemaeck,  op.  cit.,  215. 


214  Matrimonial  Institutions 

Free  marriage,  very  often  in  connection  with  wife- 
purchase,  prevails  widely  throughout  the  African  peoples. 
Accounts  differ  as  to  the  Kafirs.  According  to  Fritsch,  a 
woman  is  bought  like  any  chattel.*  But  Leslie  declares 
that  generally  the  man  first  tries  to  win  her  consent ;  for  it 
is  "a  mistake  to  imagine  that  a  girl  is  sold  by  her  father  in 
the  same  manner,  and  with  the  same  authority,  with  which 
he  would  dispose  of  a  cow."  ^  On  the  other  hand,  Fritsch 
shows  that  the  heart  of  the  Bechuana,  and  especially  that 
of  the  despised  Bushman,  "is  not  so  full  of  his  oxen,"  the 
woman  having  some  liberty  of  choice.''  Win  wood  Reade 
informed  Darwin,  with  respect  to  the  negroes  of  western 
Africa,  that  "the  women,  at  least  among  the  more  intelligent 
pagan  tribes,  have  no  difficulty  in  getting  the  husbands 
whom  they  may  desire,  although  it  is  considered  unwomanly 
to  ask  a  man  to  marry  them.  They  are  quite  capable  of 
falling  in  love,  and  of  forming  tender,  passionate,  and  faith- 
ful attachments."  * 

Throughout  all  Micronesia  and  in  many  parts  of  Mela- 
nesia marriage  implies  the  consent  of  the  betrothed.  The 
New  Caledonian  girl  is  thus  always  consulted;  and,  if 
forced  to  obey  her  parents,  she  takes  the  first  opportunity 
to  elope  with  the  man  of  her  choice.^  In  the  New  Britain 
group  "after  the  man  has  worked  for  years  to  pay  for  his 

1  Fkitsch,  Die  Eingeborenen  Siid-A/rikas,  112, 113;  with  whom  Wake,  op.  cit., 
213,  215,  agrees. 

2  Westekmaeck,  op.  cit.,  220;  Leslie,  Among  the  Zulus  and  Aviatongas,  194;  cf. 
also  Ploss,  Dos  Weib,  I,  54;  Darwin,  op.  cit.,  598,  The  despotic  power  of  the  hus- 
band is  modified  in  practice  through  influence  of  the  wife's  friends :  Behme,  in  ZVR., 
X,  39,  40,  41,  42;  Ratzel,  Hist,  of  Mankind,  II,  434. 

3  Feitsch,  Die  Eingeborenen  Sud-Afrikas,  192,  444,  445. 

*  Daewin,  op.  cit,  599.  Freedom  of  choice  in  -varying  degrees,  often  with  wife- 
purchase,  prevails  among  the  Ashantees,  Loangos,  Sognos,  Shulis,  MAdis,  Marutses, 
Hottentots,  and  Gold  Coast  negroes:  Westeemakck,  op.  cit.,  220,  221;  Ploss, op.  cjf., 
I,  54.  Cf.  Wake,  op.  cit.,  214,  215;  Munzingee,  Ostaf.  Studien,  146,  207,  324;  Waitz, 
Anthropologic,  II,  116, 117. 

5 For  these  examples  see  Westeemaeck,  op.  cit.,  218,  notes. 


Rise  op  the  Marriage  Contract  215 

wife,  and  is  finally  in  a  position  to  take  her  to  his  house, 
she  may  refuse  to  go,  and  he  cannot  claim  back  from  the 
parents  the  large  sums  he  has  paid  them  in  yams,  cocoa- 
nuts,  and  sugar-canes."  ^  Betrothal  by  the  guardian  and 
self-marriage  appear  together  in  Burma.  In  the  first  case 
the  daughter  is  given  by  her  father  in  return  for  service  and 
gifts.  Her  consent  is  not  essential;  but  if  she  runs  away 
from  her  husband  more  than  three  times,  she  is  free,  and 
her  parents  retain  the  gifts.  In  the  second  case  the  girl 
elopes  without  the  guardian's  consent,  a  recognized  marriage 
relation  being  thus  established,  though  the  guardian  may 
reclaim  the  bride.  Should  she,  however,  return  thrice  to 
her  husband,  she  remains  his  legal  wife.^  "Among  the 
Minahassers  of  Celebes  courtship  or  love-making  'is  always 
strictly  an  affair  of  the  heart  and  not  in  any  way  dependent 
upon  the  consent  or  even  wish  of  the  parents.'"^  The 
Rejang  suitor  of  Sumatra  elopes  with  the  girl  and  pays  the 
price  afterwards;  and  such  is  often  the  case  in  Australia, 
among  the  uncivilized  tribes  of  India,  and  throughout  the 
Indian  Archipelago.  In  all  these  cases,  as  well  as  among 
some  of  the  Turanian  peoples  of  central  and  northern  Asia, 
the  choice  of  the  woman,  even  without  elopement,  is  usually 
decisive,  though  often  the  arrangement  of  the  marriage 
belongs  legally  to  the  parents.* 

1  Westeemaeck,  op.  ci<.,  218.  According  to  Kohlee,  "Studien,"  ^Fi?.,  V,  385, 
actual  wife-capture  still  exists  in  the  New  Britain  islands.  "  Es  kommt  vor,  dass  die 
Frau  dem  ersten  Mann  weggenommen  wird  und  dass  die  Leiche  des  getOdteten 
ersten  Mannes  das  Hochzeitsmahl  bildet." — Powell,  "Unter  den  Cannibalen," 
GioftMS  (1884),  328. 

2  Kohlee,  "  Das  Eecht  der  Birmannen,"  ZVR.,  VI,  166, 168. 

3  Westeemaeck,  op.  cit.,  219. 

■i  See  Westeemaeck,  op.  cit.,  218-20,  and  the  many  examples  there  mentioned, 
with  citation  of  the  sources;  and  compare  Post,  Familienrecht,  166, 168, 169,  passim; 
Kohlee,  in  ^F/J.iV,  354  ff.;  Wake,  op.  ct(.,  215,216;  Pejevalski,  Mongolieet  pays  des 
Tangoutes  (1880) ,  47,  207 ;  Hue,  Travels  in  Tartary,  I,  52, 185.  For  female  choice  in 
Australia:  Fison  and  Howitt,  Kamilaroi  and  Kurnai,  234,  242,  326,  327  (Kurnai); 
276,  280,  289,  348-54  (elopement).  The  Kalmuck  wife  is  a  free  woman :  Koehne,  "  Das 
Eecht  der  Kalmflcken,"  ZVR.,  IX,  463;  and  Wake  gives  interesting  proofs  of  the 
coexistence  of  real  affection  with  polygyny  and  purchase :  op,  cit,,  218. 


216  Matrimonial  Institutions 

It  is  very  easy  to  exaggerate  the  bright  as  well  as  the 
dark  features  of  primitive  social  life.  The  reports  of 
travelers,  often  untrained  in  the  interpretation  of  the  facts 
which  they  observe,  are  notoriously  untrustworthy.  It  is 
extremely  difficult  to  discern  the  motives  which  actuate  men 
in  a  stage  of  culture  remote  from  our  own.  Nevertheless  it 
seems  certain  that  the  position  of  uncivilized  woman  with 
respect  to  marriage  is  not  quite  so  hopeless  as  is  generally 
imagined.  The  facts  appear  to  demonstrate  that  woman's 
original  liberty  of  selection  has  never  been  entirely  lost.  It 
is  evident  that  wife-purchase,  though  sometimes  the  means 
of  degradation,  even  of  marital  bondage,  is  compatible  with 
a  high  degree  of  matrimonial  choice.  The  ideas  which 
influence  the  "uncivilized"  man  in  selling  his  daughter  are 
probably  often  very  similar  to  those  which  govern  the 
thrifty  father  in  modern  society  when  he  insists  on  securing 
a  good  "match"  for  his  child.  The  price  is  regarded  as  a 
fair  equivalent  for  the  services  to  which  the  parent  is  justly 
entitled  in  return  for  rearing  the  girl.^  The  Kafir  maiden 
who  brings  a  good  price  from  her  suitor  is  not  therefore 
necessarily  a  "chattel"  any  more  than  is  the  daughter 
whose  labor  the  civilized  parent  lets  out  for  hire.*  A  high 
price  may  be  looked  upon  also  as  a  proper  recognition  of  the 
rank  or  of  the  mental  and  physical  attractions  of  the  bride.' 
Furthermore,  it  is  significant  that  actual  bride-purchase  may 

1  So  among  the  Kafirs :  Shootee,  The  Kafirs  of  Natal  and  the  Zulu  Country 
(London,  1857),  49:  Westermabck,  op.  cit.,  402;  and  among  other  tribes:  ibid.,  i02, 
note. 

2  Compare  the  remark  of  Wake,  op.  cit.,  199,  who,  in  speaking  of  purchase  in  its 
relations  to  polygyny,  says :  "  It  may  be  doubted  whether  the  ideas  which  govern 
such  a  transaction  (wife-purchase)  are  very  different  from  those  which  guide  persons 
under  similar  circumstances  in  monogamatic  societies.  When  the  savage  buys  a 
girl  to  be  his  wife,  it  is  for  the  purpose  of  having,  if  not  a  companion,  a  helpmate, 
and  a  mother  of  his  children,  and  her  father  parts  with  her  for  those  objects." 

3  Accordingly,  it  is  sometimes  regarded  as  a  disgrace  to  marry  without  payment 
of  the  bride-price ;  and  the  girl  takes  pride  in  the  amount  she  brings  to  her  father. 
For  examples  see  Wake,  op.  cit.,  183,  191;  Bancroft,  Native  Races,  I,  277,349,350; 
Powers,  Tribes  of  California,  22,  56. 


Rise  of  the  Marriage  Contract  217 

coexist  with  advanced  ethical  and  religious  conceptions  of 
the  marriage  state.  Such,  according  to  Kohler,  is  the  case 
in  the  Punjab,  where  the  courts  under  British  rule  have 
decided  that  the  sale  of  a  woman  to  be  a  wife  is  not  punish- 
able as  a  crime  under  the  statute  forbidding  the  sale  of  a 
human  being  into  slavery;'  and  Leist  has  shown  that  in  the 
dharma  period  of  early  Aryan  history  the  purchased  wife 
was  not  regarded  as  a  "thing,"  but  in  the  fullest  sense  as  a 
free  wife  entitled  to  share  the  sacra  of  the  husband's  house. 
Nay,  the  actual  payment  of  the  legal  bride-money  in  certain 
cases  was  the  only  means  through  which  marriage  by  pur- 
chase could  reach  the  proper  ethical  end  of  legitimate 
marriage:  the  birth  of  a  son  to  perpetuate  the  ancestral 
worship.^ 

Another  fact,  sometimes  misinterpreted,  seems  to  point 
clearly  to  the  persistence  of  original  free  marriage.  It  is 
highly  significant  that  wife-purchase  appears  never  to  have 
existed  at  all  among  a  certain  number  of  very  low  races, 
with  which  nevertheless  marriage  rests  on  the  free  consent 
of  the  parties.  Such  is  the  case  among  the  California  Win- 
tun,  the  Alaskan  Yukonikhotana,  the  Andamanese,  the  Chit- 
tagong  hill  tribes,  and  certain  African  peoples.  Among 
the  "Pddams,  one  of  the  lowest  peoples  of  India,  it  is  cus- 
tomary for  a  lover  to  show  his  inclinations  whilst  courting 
by  presenting  his  sweetheart  and  her  parents  with  small 
delicacies,  such  as  field  mice  and  squirrels,  though  the  par- 
ents seldom  interfere  with  the  young  couple's  designs,  and 

iKoHLEE,  "Die  Gewohnheitsrechte  des  Pendschabs,"  ZVR.,  VII,  227.  Cf. 
TUPPEE,  Punjab  Customary  Law,  III,  9,  who  gives  the  decision  referred  to;  and 
Leist,  Alt-arisches  Jus  Gentium,  46,  47, 

2  We  have  here  the  case  of  an  "  appointed  daughter."  The  son  of  a  "  brotherless 
maiden  "  was  sometimes  reserved  to  be  the  heir  of  her  father,  not  of  her  husband. 
How  could  a  man  marry  such  a  brotherless  girl  and  secure  himself  in  the  possession 
of  his  child,  to  continue  his  own  hearth-worship?  This  might  be  effected  by  pay- 
ment of  the  "oiBcial"  price  of  one  hundred  cows  and  one  wagon  (  Wagen),  and  this 
was  so  even  in  the  later  period  when  the  law-books  frowned  upon  wife-purchase : 
Leist,  op.  cit.,  110  n.  10, 127  n.  3, 130, 131,  and  the  references  to  the  ancient  law-books 
there  given. 


218  Matrimonial  Institutions 

it  would  be  regarded  as  an  indelible  disgrace  to  barter  a 
child's  happiness  for  money."'  So  likewise  with  the  Ved- 
dahs''  either  no  presents  are  given  on  either  side,  or  else  the 
ceremony  consists  simply  in  offering  some  food  to  the  par- 
ents of  the  bride ;  and  elsewhere  the  profPer  of  similar 
"wooing-gifts,"  without  previous  stipulation,  must  be  looked 
upon  either  as  a  token  of  good-will  or  as  an  indication  of 
the  ability  of  the  bridegroom  to  provide  for  a  wife,  rather 
than  as  a  means  of  purchase.^  The  probational  marriages 
of  the  Seri  Indians  appear  to  have  a  like  significance.*  May 
we  not  go  a  step  farther?  Is  it  not  probable  that  the  widely 
diffused  custom  of  bestowing  presents  of  greater  value,  even 
where  the  amount  is  established  by  usage  or  previous  agree- 

1  Westeemaeck,  op.  cit.,  397. 

2  Compare  Saeasin,  Die  Weddas  von  Ceylon,  I,  460,  461.  Sometimes  girdles 
(Lendenschnuren)  are  exchanged  by  bride  and  groom.  Free  courtship  exists ;  and  this 
primitive  people  presents  a  notable  example  of  the  pairing-family.  The  English 
author  DeButts  naively  remarks,  "  The  savage  Veddahs  live  in  pairs  like  the  beasts 
of  the  forest ":  Saeasin,  op.  cit.,  I,  549. 

3  Such  is  the  case  among  the  Ainos  of  Yesso  and  the  Brazilian  Paris,  Coroados, 
and  Coropos:  Westeemaeck,  op.  cit.,  397,398.  Among  the  Polynesians  the  present 
seems  to  be  designed  to  gain  the  good-  will  of  the  wife's  parents,  but  when  the 
wife's  family  is  the  inferior  in  rank,  the  husband,  though  rendering  the  wooing- 
gift,  receives  a  dower  with  his  bride :  Wake,  op.  cit.,  S90.  On  the  "  wooing-gift " 
see  Post,  Faniilienrecht,  173,  175;  idem,  Afrikanische  Jurisprudenz,  I,  342  ff. ; 
KoHLEE,  in  ZVR.,Y,356;  Koehne,  ibid.,  IX,  461  (Kalmucks);  Hildebeand,  Ueber 
das  Problem,  17  £f.,  who,  as  already  noted,  regards  gift  as  preceding  purchase;  and 
Ceawley,  Mystic  Rose,  386  ff.,  who  holds  that  "the  so-called  bride-price  was  origi- 
nally of  the  same  class  as  the  kalduke,  a  pledge,  a  part  of  one's  self,  given  to  another 
and  received  from  him." 

*  Among  the  Seri  the  woman  has  much  liberty  of  choice:  "certainly  she  holds 
the  power  of  veto,  ostensible  if  not  actual."  During  the  preliminary  courtship  she 
occupies  a  position  of  great  dignity.  "  When  all  parties  concerned  are  eventually 
satisfied  a  probationary  marriage  is  arranged,  and  the  groom  leaves  his  clan  and 
attaches  himself  to  that  of  his  bride.  Two  essential  conditions — one  of  mate- 
rial character  and  the  other  moral  —  are  involved  in  this  probationary  union;  in  the 
first  place  the  groom  must  become  the  provider  for,  and  the  protector  of,  the  entire 
family  of  the  bride."  For  a  year  he  thus  shows  his  "  skill  in  turtle-fishing,  strength 
in  chase,  subtlety  in  warfare,  and  all  other  physical  qualities  of  competent  man- 
hood  During  the  same  period  the  groom  shares  the  jacal  and  sleeping  robe 

provided  for  the  prospective  matron  by  her  kinswomen,  not  as  a  privileged  spouse, 
but  merely  as  a  protecting  companion;  and  throughout  this  probationary  term  he  is 
compelled  to  maintain  continence  —  i.  e.,  he  must  display  the  most  indubitable 
proofs  of  moral  force."  To  this  kind  of  service  the  character  of  wife-purchase  is 
denied:  McGee,  "The  Seri  Indians,"  XVII.  Rep.  of  Bureau  of  Eth.,  Part  I,  279  ff. 


KisE  OF  THE  Marriage  Contract  219 

ment,  may  sometimes  be  due  to  like  motives  ?  Though,  as  a 
rule,  the  presentation  of  such  gifts  represents  a  "weakened" 
form  of  wife-purchase,  it  does  not  seem  necessary  to  assign 
the  origin  of  the  practice  to  a  single  cause.  The  same  is 
true  of  the  custom  of  exchanging  presents  between  the  two 
families.  Usually  it  is  rightly  explained  as  a  stage  in  the 
decay  of  purchase  and  in  the  rise  of  the  dower;  but  when 
we  find  the  return  of  gifts  in  use  among  such  rude  peoples, 
for  instance,  as  the  Bechuanas,  the  Kalmucks,  the  Makassars, 
and  the  American  Indians,'  it  seems  reasonable  to  suppose 
that  the  custom,  in  some  cases  at  least,  may  represent  a  cere- 
monial development  of  free  marriage,  taking  its  rise  in  vari- 
ous motives.  Thus  among  the  Todas,  it  has  been  suggested, 
the  transaction  appears  as  an  exchange  of  dowers  to  serve  as 
a  security  for  the  mutual  good  behavior  of  the  future  couple." 
Similarly  with  the  American  Indians  the  gift  to  the  bride's 
parents  may  sometimes  be  designed  to  purchase  clan  privi- 
leges^ or  to  procure  the  "alliance of  the  wife's  cabin;"  while 
the  exchange  of  presents,  which  is  found  where  it  is  usual 
for  the  husband  to  take  up  his  abode  in  the  wife's  home, 
ought  perhaps  to  be  regarded  as  a  matrimonial  compact  of 
alliance  between  the  two  families.* 

Nevertheless,  after  every  allowance  is  made,  the  custom  of 
purchasing  wives  bears  the  indelible  stamp  of  barbarism. 

1  For  these  and  other  examples  see  Kohlee,  "  Studien,"  ZVR.,  V,  342,  351,  353; 
Post,  Familienrecht, n6-19;  idem,  UrsprungdesRechts,^^;  idem,  Anfange des Staats- 
und  Bechtslebcns,  55 ;  Bancroft,  Native  Races,  I. 

2  Among  the  Todas, on  betrothal,  "dowers  "  consisting  of  buffaloes  are  exchanged. 
If  the  husband  discards  his  wife,  her  father  demands  a  return  of  her  dower;  if  the 
wife  abandons  the  husband,  his  father  may  take  back  his  gift.  In  case  the  marriage 
be  canceled  because  the  husband  has  not  fulfilled  his  part  of  the  contract  he  may  be 
"fined  a  buffalo  or  two":  Maeshall,  A  Phrenologist  amongst  the  Todas,  210-13, 
217-19.    Compare  Wake,  ojj.  cit.,  451. 

3  See  the  passage  quoted  from  BoAZ,  p.  191,  above.  The  "ceremonies"  may 
sometimes  be  intended  to  prove  the  man's  ability  to  support  a  family:  Ratzel, 
Hist,  of  Mankind,  II,  125. 

i  Wake,  op.  cit.,  390;  Lafitau,  Moeurs  dessauvages  amiriquains,  I,  565,  568.  Cf. 
MoEGAN,  Ancient  Society,  ATA,  on  the  presents  to  the  wife's  relatives  among  the 
Syndiasmians  (American  Indians). 


220  Matrimonial  Institutions 

Like  polygyny,  which  it  so  often  accompanies,  it  is  an  offense 
against  the  feelings  and  the  dignity  of  woman.  Therefore, 
often  at  a  relatively  early  period  of  social  progress,  it  falls 
into  disrepute;  but  while  it  is  gradually  abandoned  as  a 
thing  unseemly  or  disgraceful,  traces  of  it  may  long  survive. 
On  the  one  hand,  as  in  the  case  of  the  Koman  coemptio,  the 
Hindu  drsha,  the  Anglo-Saxon  beweddunr/,  or  the  Jewish 
contract  with  the  penny,  the  form  of  sale  is  present  in  the 
wedding  ceremony ;  or,  on  the  other  hand,  the  bride-money, 
though  still  rendered,  comes  in  time  to  be  regarded  as 
simply  a  compensation  for  the  guardianship  of  the  woman;' 
or  else,  passing  through  several  intermediate  stages,  it  is 
slowly  transformed  into  a  dower.^ 

In  the  first  stage  of  decline  the  bride-price  appears  as  a 
nominal  compensation,  out  of  proportion  to  the  real  value  of 
the  girl.  It  usually  consists  of  presents  to  the  wife's  parents 
or  relatives,  and  sometimes  these  are  scarcely  distinguishable 
from  the  "wooing -gifts"  already  mentioned;  while  later  it 
may  degenerate  into  a  mere  symbol  or  become  a  sportive 
social  observance  whose  meaning  is  entirely  forgotten.' 
Again,  among  a  large  number  of  peoples,  custom  requires 
that  a  part,  sometimes  all,  of  the  gifts  constituting  the  price, 
or  their  equivalent,  shall  be  returned  to  the  bridegroom  or 
his  family ;  and  it  is  significant  that  special  care  is  some- 
times taken,  as  among  the  Indians  of  Oregon,  "not  to  turn 

1  SoHM,  Eheschliessung,  22  ff. ;  KOnigswaetee,  Histoire  de  Vorganisation  de  la 
famille,  123;  and  Weinhold,  Deutsche  Frauen,  I,  320,  hold  this  view.  But  the  point 
is.disputed  and  will  be  recurred  to  in  another  chapter. 

2  In  general,  on  the  decay  of  wife-purchase,  see  Westeemaeck,  op.  cit.,  402-16, 
who  gives  the  fullest  and  most  detailed  account ;  Post,  FamilieHrecht,  nd-&l,  who 
discusses  the  stages  of  decline. 

3  Thus  in  Lovrec,  Dalmatia,  where  the  bride-price  is  no  longer  customary,  when 
the  Brautfilhrer,  on  the  day  before  the  nuptials,  comes  to  the  bride's  home  for  the 
Brautkiste  containing  her  trousseau,  he  finds  a  child  sitting  upon  it,  who  must  be 
bought  off  through  payment  of  a  piece  of  gold :  Post,  op.  cit.,  177.  Sometimes  the 
symbolical  purchase  coexists  for  a  time  with  real  purchase:  ibid.,  177;  idem, 
GeschlechtsgenosseTischaft,  73;  idem,  Grundlagen  des  Eechts,  235. 


Rise  of  the  Mareiage  Contract  221 

over  the  same  horses  or  the  same  articles."'  With  other 
peoples  a  part  or  the  whole  of  the  purchase  price  comes  to  the 
bride  herself.  Either  the  father  turns  it  over  as  a  marriage  ♦ 
portion,  or  it  is  paid  to  her  directly  by  the  bridegroom.  In 
the  latter  case,  as  Westermarck  observes,  it  is  often  difficult 
"to  make  out  whether  the  presents  obtained  from  the  bride- 
groom formed  originally  a  part  of  the  bride-price  or  were 
only  a  means  of  gaining  her  own  consent."^  One  step  more, 
and  we  reach  the  stage  of  development  in  which  the  father 
provides  his  daughters  with  a  dotal  portion  out  of  his  own  • 
substance.^ 

Thus,  to  summarize,  it  appears  in  general  that  the  insti- 
tution of  dower  takes  its  rise  in  two  principal  sources :  either 
it  is  derived  through  the  return  gift  from  its  exact  opposite, 
the  ancient  purchase  price  of  the  bride;  or,  as  a  means  of 

1  Westeemaeck,  op.  cit.,  409  flf.  For  many  examples  of  exchange  of  gifts  see 
"XoHLEE,  "Studien,"  ZVR.,  V,  340,  341,  347-49,  351,  353,  365;  Post,  op.  cit.,  177-79. 

2  Westermarck,  op.  cit.,  409,  410,  giving  examples. 

3  The  marriage  contract  had  already  reached  this  last  stage  among  the  ancient 
Babylonians  and  Assyrians.  They  had  a  remarkably  high  ideal  of  family  life.  The 
facts  disclosed  by  the  records  are  wholly  inconsistent  with  Herodotus's  story  regard- 
ing the  sacred  prostitution  of  the  unmarried  women.  At  the  nuptials  it  was  cus- 
tomary to  state  that  the  bride  was  "pure"  or  "without  stain."  Polygyny  existed 
only  as  the  rare  luxury  of  the  rich.  As  a  rule,  the  formation  of  a  second  marriage 
was  equivalent  to  a  divorce  from  the  first.  Two  principles,  declares  Sayce,  the 
maternal  and  the  paternal,  "were  struggling  for  recognition."  Perhaps  "they  were 
due  to  a  duality  of  race;  perhaps  they  were  merely  a  result  of  the  circumstances 
under  which  the  Babylonians  lived.  At  times  it  would  seem  as  if  we  must  pronounce 
the  Babylonian  family  to  have  been  patriarchal  in  character;  at  other  times  the 
wife  and  mother  occupies  an  independent  and  even  commanding  position.  It  may 
be  noted  that  whereas  in  the  old  Sumerian  hymns  the  woman  takes  precedence  of 
the  man,  Semitic  translation  invariably  reverses  the  order :  the  one  has  'female  and 
male,'  the  other  'male  and  female.'  "—Babylonians  and  Assyrians,  13.  The  practical 
result  was  that  the  sexes  were  nearly  equal  in  marriage.  The  individual  and  not 
the  family  was  the  social  unit;  and  the  individuality  of  the  woman  was  fully  recog- 
nized. She  controlled  her  own  property.  She  could  buy  and  sell,  borrow  and  lend, 
sue  and  be  sued,  and  inherit  equally  with  her  brother.  She  might  become  a 
priestess^  the  head  of  a  city,  or  the  queen  of  the  state.  The  wife  was  her  husband's 
equal  in  the  business  world.  The  possession  of  property  "brought  with  it  the  enjoy- 
ment of  considerable  authority."  She  "could  act  apart  from  her  husband,  could 
enter  into  partnership,  could  trade  with  her  money,  and  conduct  law-suits  in  her 
own  name." — Idem,  Social  Life  among  the  Assyrians  and  Babylonians,  50,  51.  The 
bride's  dower  was  paid  by  her  father  to  the  bridegroom;  but  it  was  her  property. 
Sometimes  the  husband  enjoyed  the  use  of  it  for  life;  sometimes  the  wife  disposed 


/ 


222  Matrimonial  Institutions 

providing  in  some  way  for  the  wife  as  a  member  of  the  new 
household,  it  has  developed  along  with  free  marriage,  and 
stands  as  an  expression  of  the  natural  motives  and  desires 
upon  which  the  human  family  rests.  Strangely  enough,  in 
our  own  society  the  marriage  portion  "has  become  a  pur- 
chase sum  by  means  of  which  a  father  buys  a  husband  for 
his  daughter." '  It  may  be  doubted  whether  the  ideas  which 
actuate  the  modern  plutocrat  in  such  a  transaction  differ 
essentially  from  those  of  the  rich  savage  or  barbarian  who 
succeeds  in  procuring  a  beautiful  or  high-born  maiden  in 
exchange  for  his  flocks. 

We  have  now  traced  the  evolution  of  the  marriage  con- 
tract throughout  its  entire  course,  and  are  able  to  perceive  in  a 
measure  its  true  place  in  the  general  history  of  the  human 
family.  Again  the  movement  has  been  in  a  circle.  As  in 
the  case  of  monogamy,  the  genesis  of  contract  must  be 
sought  beyond  the  border-line  between  man  and  the  lower 
animals.  In  the  "natural  history"  stage  of  human  existence 
marriage  rested  on  the  free  consent  of  the  man  and  the 
woman.     It  was  an  informal  agreement.     The  man  was  the 

of  it  as  her  private  capital.  It  was  always  a  means  of  securing  her  economic  inde- 
pendence, and  thus  of  promoting  the  happiness  of  her  married  life.  "In  this  way 
she  was  protected  from  tyrannical  conduct  upon  his  part,  as  well  as  from  the  fear  of 
divorce  on  insufficient  grounds.  If  a  divorce  took  place  the  husband  was  required 
to  hand  over  to  the  wife  all  the  property  she  had  brought  with  her  as  dowry,  and 
she  then  either  returned  to  her  father's  home  or  set  up  an  independent  establish- 
ment of  her  own."  The  divorced  woman  might  marry  again  if  she  chose.  "  Marriage 
was  partly  a  religious  and  partly  a  civil  function.  The  contracting  parties  fre- 
quently invoked  the  gods,  and  signed  the  contract  in  the  presence  of  the  priest.  At 
the  same  time  it  was  a  contract,  and  in  order  to  be  legally  valid  it  had  to  be  drawn 
up  in  legal  form  and  attested  by  a  number  of  witnesses.  Like  all  other  legal  docu- 
ments it  was  carefully  dated  and  registered."— Idem,  ibid.,  46,  47,  49,  50.  Cf.  for  the 
forms  of  contract  and  ceremony  his  Babylonians  and  Assyrians,  13-43;  also  the 
interesting  account  of  SiMCOX,  Primitive  Civilizations,  I,  360-79 ;  her  discussion  of  the 
similarly  advanced  domestic  relations  of  the  ancient  Egyptians,  ibid.,  I,  198-225; 
KoHLER,  "Ueber  zwei  babylonische  Rechtsurkunden  aus  der  Zeit  Nabonids,"  ZVB., 
V;  and  'H.avft,  Die  sumerischen  Familiengesetze. 

1  In  "  our  days,  a  woman  without  a  marriage  portion,  unless  she  has  some  great 
natural  attractions,  runs  the  risk  of  being  a  spinster  forever.  This  state  of  things 
naturally  grows  up  in  a  society  where  monogamy  is  prescribed  by  law,  where  the 
adult  women  outnumber  the  adult  men,  where  many  men  never  marry,  and  where 
married  women  too  often  lead  an  indolent  life." — Westeemaeck,  op.  cit.,  416. 


EisE  OF  THE  Marriage  Contract  223 

wooer,  and  to  the  woman  belonged  the  first  place  in  sexual 
choice.  In  obedience  to  the  unvarying  requirements  of 
organic  law,  the  best  attributes  of  each  race  have  thus  been 
differentiated:  through  natural  selection  they  represent  the 
survival  of  the  fittest.  At  a  later  stage  of  development  the 
element  of  mutual  consent  falls  somewhat  into  abeyance. 
With  the  rise  of  property,  industry,  and  a  more  complex 
social  organization,  giving  birth  to  new  desires  and  ambitions, 
contract  by  the  guardian  in  part  supersedes  self -betrothal. 
Purchase  and  its  occasional  alternative,  capture,  depriving 
woman  of  her  natural  right  of  assent,  tend  to  reduce  the 
wife  to  concubinage  and  domestic  slavery.  But  fortunately 
the  victory  is  not  complete.  Just  as  monogamy  is  never 
displaced  by  polygyny  as  the  natural  type  of  marriage,  so 
the  consent  of  woman  as  the  normal  condition  of  matrimo- 
nial union  is  never  entirely  destroyed  by  wife-purchase. 
With  the  evolution  of  altruism,  the  increase  of  culture,  pro- 
ducing sympathy  upon  which  connubial  love  largely  depends, 
and  the  gradual  recognition  of  the  spiritual  equality  of  the 
sexes,  self-betrothal,  like  monogamy,  again  predominates. 
In  short,  whether  regarded  historically  or  biologically, 
monogamy  and  self -betrothal  appear  simply  as  two  aspects 
of  the  same  institution;  they  are  connected  by  a  psychic 
bond,  and  together  they  constitue  the  highest  type  of  mar- 
riage and  the  family. 


CHAPTER  V 

EARLY  HISTORY  OP  DIVORCE 

[Bibliographical  Note  V. —  For  the  law  and  custom  of  divorce 
among  uncivilized  peoples  the  best  analysis  and  the  most  painstaking 
classifications  are  given  by  Post  in  his  Entwicklungsgeschichte  des 
Familienrechts  and  the  first  volume  of  his  Afrikanische  Jurisprudenz, 
supplemented  by  the  more  general  notices  contained  in  his  various 
other  writings.  The  subject  is  also  well  treated,  with  the  usual  minute 
citation  of  authorities,  in  the  twenty-third  chapter  of  Westermarck's 
Human  Marriage.  The  fourteenth  chapter  of  Letourneau's  L'^volu- 
tion  du  mariage  et  de  la  famille  is  interesting  and  suggestive,  but  his 
analysis  is  defective;  and  in  this  connection,  as  elsewhere,  the  author  is 
inclined  to  take  too  pessimistic  a  view  of  the  juridical  character  of 
early  society.  Further  general  or  special  discussion  may  also  be  found 
in  many  of  the  works  already  described  in  previous  Bibliographical 
Notes,  especially  in  those  of  Wake,  Starcke,  Spencer,  Mason,  linger, 
Bastian,  Friedrichs,  Smith,  Krauss,  Wilken,  Riedel,  Henrici,  Bernhoft, 
Rehme,  Hellwald,  Klemm,  Ratzel,  Waitz,  Fritsch,  Munzinger,  Sarasin, 
and  the  numerous  papers  of  Kohler.  For  the  Chinese,  in  connection 
with  the  books  enumerated  in  Biliographical  Note  IV,  read  Legge,  Life 
and  Teachings  of  Confucius  (3d  ed.,  London,  1872);  Doolittle,  Social 
Life  of  the  Chinese  (New  York,  1867);  and  Alabaster,  Chinese  Criminal 
Law  (London,  1899),  The  literature  relating  to  the  Eskimo  and  the 
red  Indians  of  America,  mentioned  in  Bibliographical  Note  IV,  yields 
many  important  notices  of  divorce  usage.  In  addition  read  Thwaite's 
valuable  paper  on  the  Winnebagoes,  Wisconsi^i  Hist.  Collections,  XII 
(Madison,  1892).  For  reference  to  the  divorce  institutions  among 
Greeks,  Romans,  Hebrews,  and  Early  Germans  see  Bibliographical 
Note  XL] 

I.    THE    RIGHT    OP    DIVORCE 

Few  of  the  results  of  recent  research  are  more  surprising 
than  the  revelation  of  the  existence  among  low  races  of  elabo- 
rate systems  of  unwritten  law  covering,  often  in  a  very 
orderly  and  comprehensive  way,  most  of  the  divisions  which 
one   ordinarily   associates  with  "civilized"  jurisprudence.' 

1  For  the  proof,  see,  for  instance,  the  numerous  ■writings  of  Riedel,  Wilken,  Bas- 
tian, Friedrichs,  BernhOft,  Post,  and  Kohler. 

224 


Early  History  of  Divorce  225 

This  is  especially  true  of  the  law  of  divorce.  The  inves- 
tigations of  various  scholars,  notably  those  of  Kohler, 
Letourneau,  Westermarck,  and  Post,  have  disclosed  among 
the  barbarous  or  even  savage  races  of  mankind  a  careful 
attention  to  detail,  a  stability,  and  often  a  respect  for 
equity,  in  the  customary  rules  relating  to  the  dissolution  of 
marriage,  which  western  prejudice  is  scarcely  prepared  to 
find;  while  other  peoples  commonly  looked  upon  as  civil- 
ized, but  relatively  non-progressive,  such  as  the  Chinese, 
are  sometimes  quite  capable  of  teaching  us  valuable  lessons 
in  this  regard. 

According  to  the  generalization  of  Post,  who  has  given 
the  most  careful  groupings,*  "the  laws  of  divorce  found 
among  the  different  peoples  of  the  earth  vary  within  the 
widest  limits  conceivable."  So  confusing,  indeed,  is  the 
mass  of  custom  relating  to  the  subject  that  in  the  very  out- 
set a  word  of  warning  must  be  given.  For  in  the  present 
state  of  inquiry,  often  dependent  upon  superficial  observa- 
tion and  conflicting  reports,  any  analysis  or  classification, 
however  careful,  must  perforce  be  accepted  as  really  tenta- 
tive and  only  in  broad  outline  approaching  the  truth. 
Nevertheless,  with  regard  to  the  liberty  of  divorce,  following 
the  suggestion  of  Post,  five  classes  of  peoples  may  be  differ- 
entiated : 

1.  Very  often  among  rude  races,  particularly  where  the 
"genealogical  organization  is  little  developed  or  in  process 
of  decay,"  the  marriage  bond  is  lax,  and  it  is  readily  dis- 
solved at  the  pleasure  of  either  party.^     Such  is  the  case 

'Post,  Familienrecht,  75-79,  249-65;  idem,  Anfdnge,  20,21;  idem,  Afrikanische 
Jurisprudenz,  I,  320  ff,,  434  S. ;  idem,  Grundlagen  des  Rechts,  267  fif. 

2  Post,  Familienrecht,  250-58,  enumerates  six  classes  of  peoples  according  to  the 
freedom  of  divorce :  (1)  the  marriage  relation  loose  and  dissoluble  at  the  pleasure  of 
either  party;  (2)  marriage  indissoluble ;  (3)  divorce  only  by  mutual  consent;  (4)  di- 
vorce the  right  of  the  husband  only ;  (5)  divorce  the  right  of  the  wife;  (6)  divorce 
only  on  definite  grounds,  these  grounds  either  being  the  same  for  either  spouse  or 
different  for  the  man  and  the  woman  respectively.    In  the  text  examples  of  the  filth 


226  Matrimonial  Institutions 

with  many  African,  Asiatic,  American,  and  Oceanic  peoples. 
Among  the  African  Damaras,  for  instance,  the  wife  may 
change  her  husband  every  week  if  she  likes.'  Similarly 
among  the  Shekiani,  another  negro  tribe,  the  woman  may 
abandon  her  spouse  for  mistreatment  or  for  any  other  cause, 
returning  to  her  native  village,  where  her  friends  make  it 
a  point  of  honor  not  to  give  her  back ;  and  in  this  way  wars 
sometimes  arise.^  Like  freedom  exists  on  the  Gold  Coast 
and  among  the  Felups  of  Fogni;  and  very  commonly  in 
Africa  the  wife  may  leave  the  husband  if  the  purchase  price 
is  returned/  Among  the  Makassars  and  Buginese,  without 
assigning  any  cause  whatever,  either  party  may  divorce  the 
other,  dividing  the  children  between  them.*  The  same  is 
true  of  the  endogamic  Alfurese  of  Minahasa,  with  whom  the 
cognatic  system  of  relationship  prevails.*  Even  in  Burma 
divorce  appears  to  be  a  one-sided  matter,  though  the  person 
dissolving  the  marriage  suffers  severe  disadvantages  with 
respect  to  property  rights.®     In  ancient  Arabia  marriages 

group  are  given  in  connection  with  the  cases  of  divorce  at  the  pleasure  of  either 
party;  for  where  the  wife  has  the  right  to  put  away  or  leave  the  husband  when  she 
likes,  the  husband,  unless  in  very  exceptional  cases  (Post,  Grundlagen,  271),  appears 
to  have  the  same  privilege  with  respect  to  the  wife;  hence  Post's  first  and  fifth 
groups  are  practically  the  same. 

In  general  on  the  first  phase,  see  Post,  Afrikanische  Jurisprudenz,  I,  433-38 ; 
idem,  Grundlagen,  267  ff. ;  idem,  Familienrecht,  249-51 ;  Letoueneau,  V Evolution  du 
mariage,  284  ff.,  289,  290;  BebnhOft,  "  Das  Gesetz  von  Gortyn,"  ZVR.,  VI,  430  ff,,  434; 
Westermaeck,  Human  Marriage,  518  ff. 

1  Post,  Afrikanische  Jurisprudenz,  I,  436,  437.  The  husband  seems  also  to  have 
absolute  right  of  divorce :  Letoueneau,  op.  cit.,  285. 

2  Post,  op.  cit.,  I,  437. 

3  Among  the  Mundingos  the  wife  has  an  action  against  the  husband  for  abuse; 
in  Soulimana  she  may  leave  him,  if  the  bride-presents  are  restored ;  while  among  the 
Krus  in  such  cases  her  relatives  must  repay  double  the  purchase  price;  Waitz,  Artr 
thropologie,  II,  119,  120.  Among  the  Charruas,  where  polygyny  exists,  the  wife 
abandons  the  husband  if  an  unmarried  man  will  take  her :  Klemm,  Kulturgeschichte, 
II,  75. 

*  Post,  Familienrecht,  251.  5  ibid. 

6  This  is  the  conclusion  of  Kohlee,  "  Aus  der  Praxis  des  buddhistiscben  Rechts 
in  Birma,"  ZVR.,  VI,  389-91,  following  the  interesting  decisions  in  Jaedine,  Circu- 
lars {Civil  and  Crim-inal)  of  the  Court  of  the  Judicial  Conimissiotier  of  British  Burma, 
1883  (Rangoon,  1884),  Cf.  also  Kohlee,  in  ZVR.,  VI,  172;  Post,  Familienrecht,  251; 
and  Westeemarck,  op.  cit.,528. 


Early  History  of  Divorce  227 

were  formed  without  ceremony,  and  they  were  ended 
by  either  spouse  with  equal  ease.'  But  the  law  of  the 
Amaxosa,  constituting  with  the  Amazulu  the  division  of  the 
Bantu  stock  commonly  called  "Kafirs,"  affords  a  particu- 
larly interesting  example  of  early  custom  with  regard  to 
divorce  and  its  legal  consequences.  Both  parties  enjoy  the 
greatest  freedom  in  dissolving  the  marriage;  and  this  is 
all  the  more  striking  because  of  the  prevalence  of  wife- 
purchase,  which  usually  restricts  the  privileges  of  the 
woman  in  this  regard.  If  the  marriage  is  childless,  how- 
ever long  it  may  have  endured,  the  husband  who  proves  the 
alleged  ground  of  divorce  is  entitled  to  receive  back  the 
purchase  price;  and  this  is  true  also,  in  case  of  such  a  mar- 
riage, when  the  separation  takes  place  on  the  part  of  the 
wife,  unless  she  establishes  very  grave  cause  for  her  action. 
The  divorced  woman  is  permitted  to  marry  again,  provided 
the  purchase  price  is  restored  to  the  first  husband;  and  this 
in  such  case  he  is  entitled  to  receive  even  when  she  has 
borne  him  children:  for  here  "in  all  cases  the  children 
belong  to  the  father."^ 

Divorce  is  a  simple  matter  among  the  Point  Barrow 
Eskimo.  "As  well  as  we  could  judge,"  writes  Murdoch, 
"the  marriage  bond  was  regarded  simply  as  a  contract  .  .  .  .; 
and,  without    any  formal  ceremony  of  divorce,  easily  dis- 

1  Among  the  early  Arabians  the  woman  as  ■well  as  the  man  had  entire  freedom 
of  divorce.  The  nik&h  al-mot'a,  or  temporary  contract-marriage,  amounted  merely 
to  a  restriction  of  the  woman's  power  of  divorce  during  the  short  term  of  agreement : 
Smith,  Kinship  and  Marriage,  59  ff.,  65  fl. ;  Kkkmee,  Kulturgeschichte  des  Orients,  I. 
538;  WiLKEN,  Das  Matriarchat,  18,  9ff. :  ap,  Amviianus  Marcellinus,  Book  XIV,  sec. 
iv,  4,  Yonge'3  trans.  (London,  1887),  11.  By  the  later  Arabian  law,  after  the  rise  of 
wife-capture  and  wife-purchase,  divorce  became  the  sole  privilege  of  the  husband  ; 
and  the  same  is  true  under  the  still  later  law.  Cf.  in  general,  Hellwald,  Die 
mensch.  Familie,  chaps,  xxii,  xxiii;  Kohlee,  "  Ueber  das  vorislamitische  Recht  dor 
Araber,"  ZVR.,  VIII,  244,  248,  257;  Feiedeichs,  "  Das  Eherecht  des  Islam,"  i6id., 
VII,  263-69. 

2EEHME,  "Ueber  das  Recht  der  Amaxosa,"  ZVR.,  X,  38,  39;  cf.  Post,  Afrika- 
nische  Jurisprudcnz,  I,  436.  Feitsch,  Die  Eingeborenen  Sud-Afrikas,  113,  says  that 
in  cases  of  very  cruel  treatment  the  wife  may  abandon  the  husband  and  return  to 
her  family ;  to  get  her  back  the  husband  has  to  make  an  after-payment. 


228  Matrimonial  Institutions 

solved  in  the  same  way  on  account  of  incompatibility  of 
temper  or  even  on  account  of  temporary  disagreements."' 
Among  the  Santee  Dakotas,  where  mother-right  is  said  to 
prevail,  "a  wife's  mother  can  take  her  from  the  husband  and 
give  her  to  another  man."  With  "the  Cegiha,  if  the  hus- 
band is  kind,  the  mother-in-law  never  interferes."  But 
when  he  is  "  unkind  the  wife  takes  herself  back,  saying  to 
him,  '  I  have  had  you  for  my  husband  long  enough ;  depart.' " 
When  the  man  has  beaten  the  woman  several  times  or  been 
otherwise  cruel,  sometimes  her  father  or  elder  brother  says 
to  him:  "You  have  made  her  suffer;  you  shall  not  have  her 
for  a  wife  any  longer."  When  a  woman  who  has  been 
warned  against  a  man  by  her  relatives  repents  and  wishes  to 
dissolve  the  marriage,  her  male  kindred  as  a  punishment  say 
to  her:  "Not  so;  still  have  him  for  your  husband;  remain 
with  him  always."* 

2.  Passing  to  the  opposite  extreme,  there  are  peoples  with 
whom  marriage  is  a  relation  absolutely  indissoluble.  Some- 
times this  is  the  case  on  sacramental  grounds,  implying 
usually  considerable  progress  in  religious  ideas;*  but  it  is 
also  true  of  peoples  standing  on  a  very  low  plane  of  culture, 
such  as  certain  of  the  Papuas  of  New  Guinea,  the  Veddahs* 

1  In  two  cases  wives  left  their  husbands  for  bad  treatment.  Occasionally  the 
man  repudiates  his  wife;  and  sometimes  there  are  several  changes  or  exchanges 
before  a  permanent  choice  is  made.  When,  however,  a  union  is  once  settled,  it  is  not 
easily  dissolved :  Mdrdoch,  in  IX.  Rep.  of  Bureau  of  Eth.,  411,  412.  Similar  freedom 
for  both  sexes  prevails  among  the  Eskimo  , about  Bering  Strait:  Nelson,  i6id., 
XVIII,  Part  I,  292. 

2  Dorset,  "  Omaha  Sociology,"  III.  Rep.  of  Bureau  of  Eth.,  261, 262.  For  further 
examples  of  easy  divorce  among  the  Indians  see  Turner,  "  Ethnology  of  the 
Ungava  District,"  ibid.,  XI,  270  (Nenenot)  ;  Report  Smith.  Inst.,  1885,  71  (Pawnees 
marry  and  unmarry  at  pleasure);  Anchieta,  "  Informagao,"  Revist.  Trim.  Hist., 
VIII,  254-62  (the  woman  leaves  the  man  at  pleasure  in  Brazil). 

3  The  old  Indie  law  does  not  recognize  a  proper  divorce,  though  the  husband 
may  "  supersede  "  his  wife;  but  sometimes  by  the  existing  custom  of  Indian  peoples 
it  is  allowed :  Kohler,  in  ZVR.,  Ill,  384,  -386  fif. ;  VII,  236;  XI,  169.  Cf.  Feiedeichs, 
ibid.,  X,  251;  Westeemarck,  op.  crt.,525;  Letoueneau,  op.  cit.,  301,  302. 

*  Saeasin,  Die  Weddas  von.  Ceylon,  I,  459. 


Early  History  of  Divorce  229 

.of  Ceylon,  or  the  Niassers  of  Batu,  where  death  alone  is 
sufficient  to  dissolve  the  marriage  bond.* 

3.  Between  these  extremes  of  one-sided  freedom  and 
entire  prohibition  of  divorce  various  intermediate  phases 
appear.  Sometimes  the  only  method  is  mutual  agreement 
of  the  parties.  So,  for  instance,  according  to  Post,  among 
the  Karo-Karo,  a  Batak  tribe  on  the  east  coast  of  Sumatra, 
neither  harsh  mistreatment,  wicked  desertion,  nor  even 
adultery  gives  either  the  wife  or  the  husband  singly  the 
right  to  demand  a  separation.  Only  in  case  of  life-assault 
is  one-sided  divorce  permitted;  and  this  rule  is  perhaps  a 
mitigation  of  the  older  and  severer  law.^  In  West- Victoria 
"a  man  can  divorce  his  wife  for  serious  misconduct,  and  even 
put  her  to  death ;  but  in  every  case  the  charge  against  her 
must  first  be  laid  before  the  chiefs  of  his  own  and  his  wife's 
tribes,  and  their  consent  to  her  punishment  obtained.  If  the 
wife  has  children,  however,  she  cannot  be  divorced.  Should 
a  betrothed  woman  be  found  after  marriage  to  have  been 
unfaithful,  her  husband  must  divorce  her.  Her  relations 
then  remove  her  and  her  child  to  her  own  tribe,  and  compel 
the  father  of  the  child  to  marry  her,  unless  he  be  a  relative. 
In  that  case  she  must  remain  unmarried.  If  a  husband  is 
unfaithful,  his  wife  cannot  divorce  him.  She  may  make  a 
complaint  to  the  chief,  who  can  punish  the  man  by  sending 
him  away  for  two  or  three  moons;  and  the  guilty  woman  is 
very  severely  punished  by  her  relatives."  But  there  are 
other  ways  of  dissolving  a  marriage;  and  under  some  con- 
ditions the  woman  has  a  chance.     Exchange  of  wives,  when 

1  Post,  Familienrecht,  251,  252,  following  the  researches  of  Wilken  and  Riedel. 
This  rule  applies,  apparently,  only  to  the  Papuas  of  Geelvinkbai  in  New  Guinea; 
elsewhere  in  that  island  the  man  may  put  away  the  woman  at  pleasure:  Kohlee, 
"Ueberdas  Recht  der  Papuas  auf  Neu-Guinea,"  in  ZFi?.,  VII,  373,  In  general  cf. 
Westeemarck,  op.  cit.,  517. 

2  Post,  op.  cit.,  252.  In  some  instances,  however,  mutual  agreement  is  only  one  of 
several  grounds  on  which  dissolution  of  the  marriage  is  allowed.  "  So  ist  z.  B.  auf 
Mukuhiva,  auf  den  Marianen,  beidenKoluschen  eineTrennungderEhe  durchgegem- 
seitige  Uebereinkimft  gestattet.    Ebenso  in  Birma."— Post,  lac.  cit,,  252,  253. 


230  Matrimonial  Institutions 

both  are  childless,  is  "permitted  only  after  the  death  of  their 
parents,  and,  of  course,  with  the  consent  of  the  chiefs."  A 
couple  without  children  may  separate  by  mutual  consent; 
and  "when  a  woman  is  treated  with  cruelty  by  her  husband, 
she  may  put  herself  under  the  protection  of  another  man, 
with  the  intention  of  becoming  his  wife.  If  he  take  upon 
himself  the  duty  of  protecting  her,  he  must  challenge  her 
husband  and  defeat  him  in  single  combat  in  presence  of  the 
chiefs  and  friends  of  both  parties."  When  a  "husband 
knows  that  his  wife  is  in  love  with  another  man,  and  if  he 
has  no  objection  to  part  with  her,  he  takes  her  basket  to  the 
man's  wuurn  and  leaves  it.  But  as  no  marriage  or  exchange 
of  wives  can  take  place  without  the  consent  of  the  chief, 
the  wife  remains  with  her  husband  till  the  final  great 
meeting,  when  the  bargain  is  confirmed.  This  amicable 
separation  does  not  create  any  ill  feeling  between  the 
parties,  as  the  woman  is  always  kind  to  her  first  husband 
without  causing  any  jealousy  on  the  part  of  the  second. 
Such  transactions,  although  lawful,  may  not  be  approved 
of  by  the  woman's  relatives,  and  she  is  liable  to  be  speared 
by  her  brother.'" 

Among  the  Marea,  when  husband  and  wife  can  no  longer 
tolerate  each  other,  they  are  given  a  year's  probation  by  the 
"family  council;"  and  only  after  the  expiration  of  this 
period  does  the  formal  divorce  take  place.  A  discontented 
Marea  dame  of  noble  (patriarchal)  rank  may  not  of  her  own 
will  leave  her  husband;  for  this  would  offend  social  usage. 
But  a  Tigrait,  or  woman  of  the  servile  class,  may  under  such 
circumstances  abandon  her  spouse,  provided  thenceforth  she 
live  abroad.^ 

1  Dawson,  Avstralian  Aborigines,  33-36.  Divorce  by  motual  consent  is  lawful  in 
Polynesia,  but  it  rarely  occurs  if  there  are  children:  Avert,  "The  Indo-Pacific 
Oceans,"  Am.  Ant.,  VI,  366;  the  same  is  true  of  some  American  peoples:  Waitz, 
Anthropologic,  III,  328. 

2  MUNZINGEE,  Ostaf.  Studicn,  241. 


Early  History  op  Divorce  231 

4.  Again  it  is  very  common  among  uncivilized  as  well 
as  more  advanced  races  for  a  man  to  have  absolute  risrht  of 
divorce,  putting  away  his  wife  when  he  likes,  without  the 
assignment  of  any  reason,  or  on  the  most  frivolous  grounds.' 
Sometimes,  even  among  the  same  peoples,  the  woman  has  a 
reciprocal  right,  as  will  presently  appear;   but  very  often 
divorce  is  the   sole    prerogative   of   the   man,   or  else  the 
woman  is  grudgingly  allowed   the   privilege  only  for  the 
most  serious  cause.     The  unfavorable  position  in  which  she 
is  thus  placed  is  no  doubt  largely  due  to  wife-capture,  and 
especially  to  wife-purchase,  through   which  she  too  often 
sinks  to  the  level  of  a  mere  chattel  or  beast  of  burden.     Still 
even  wife-purchase,  as  hereafter  shown,  may  have  its  com- 
pensations; for  the  husband  cannot  act  too  harshly  without 
danger  of  the  blood-feud;  and  he  may  suflPer  a  decided  dis- 
advantage with  respect  to  property  by  summarily  dismissing 
his  wife.     Unlimited  right  of  divorce  belongs  to  the  man  in 
some  parts  of  China,*  and  with  many  African^  and  Ameri- 
can* tribes.     "The  Aleuts  used  to  exchange  their  wives  for 
food  and  clothes.     In  Tonga  a  husband  divorces  his  wife  by 
simply  telling  her  to   go."      In    "Yucatan   a   man    might 
divorce  his  wife  for  the  merest  trifle,  even  though  he  had 
children  by  her." ^     Among  the  California  Yurok  "divorce 
is  very  easily  accomplished  at  the  will  of  the  husband,  the 
only  indispensable  formality  being   that   he  must    receive 
back  from  his  father-in-law  the  money  which  he  paid  for 

iFor  these  cases  see  Westeemaeck,  op.  cii.,  520-23;  To^iT,  Familienrtchty  253, 
254;  idem,  Afrikanische  Jurisprudenz,  I,  433-36;  idem,  Grundlapen,  268,  269;  Feied- 
EICHS,  "  Familienstufen  und  Eheformen,"  ZVR.,  X,  251,252;  Kohler,  "Studien," 
ibid.,  V,  340,  341  (Mongols  and  Tunguse);  idem,  "  Ueber  das  Eecht  der  Koreaner," 
ibid.,  VI,  403;  and  Letoueneau,  Vivolution  du  mariage,  286  ff.,  289  £f. 

^McLennan,  Studies,  1, 141, 142,  note;  Post,  Familienrecht,  253.  But  this  is  not 
the  general  rule,  as  below  shown. 

3  Post,  Afrikanische  Jurisprudenz,  I,  433  fF. ;  Waitz,  Anthropologie,  II,  109, 115 
(only  the  woman  legally  capable  of  adultery),  120;  Mdnzingee,  Ostaf.  Studien,  320 
(Beni  Amer). 

«  Post,  Familienrecht,  253.  5  Westeebiaeck,  op.  cit.,  520,  52L 


232  Matrimonial  Institutions     '' 

his  spouse." '  If  dissatisfied  with  his  wife,  the  young  Gal- 
linomero  of  the  same  region  may  "strike  a  bargain  with 
another  man"  and  sell  her  "for  a  few  strings  of  shell- 
money."^  In  the  so-called  "straw  dance"  the  Dakota 
husband  may  "throw  away"  the  wife  whom  he  no  longer 
desires.  He  may  even  take  several  wives  in  order  to  dis- 
pose of  them  in  this  way;  thus  adding  to  his  importance 
and  giving  evidence  of  his  "strong  heart."  ^  Among  the 
Abipones  divorces  are  as  frequent  "as  changing  of  the  dress 
in  Europe,"  If  "their  wives  displease  them,  it  is  sufficient; 
they  are  ordered  to  decamp."  The  husband's  right  is 
unrestrained  by  the  law;  but,  "appointing  a  drinking-party, 
wherein  the  memory  of  injuries  is  refreshed  in  the  minds  of 
the  intoxicated  guests,  the  relations  fiercely  avenge  the  dis- 
honor done  to  the  repudiated  wife."*  The  Tasmanian 
husband,  when  dissatisfied  or  when  a  liberal  offer  is  made, 
may  "transfer"  his  spouse  like  a  slave;  but  in  Luzon  a 
divorce  is  more  difficult,  for  the  wedding  gifts  must  be 
redistributed  among  the  donors.*  With  "the  ancient 
Hebrews,  Greeks,  Romans,  and  Germans,  dislike  was 
regarded  as  a  sufficient  reason  for  divorce."^     Such  is  also 

1  POWEES,  Tribes  of  Cal.,  56.  2 ibid.,  178. 

3  After  the  wife  is  "  thrown  away  "  the  husband  becomes  a  "  young  man  "  again, 
and  seeks  new  partners:  Beckwith,  "Customs  of  the  Dakotahs,"  Rep.  Smith. 
Inst.,  1886,  Part  I,  256.  Cf.  also  on  the  man's  absolute  right  of  divorce,  Doeset, 
"  Siouan  Sociology,"  XV.  Rep.  of  Bureau  of  Eth.,  225. 

*  DoBEiZHOFFEE,  Accwint,  11,  210-12,  96, 138;  cf.  GniMARAES,  "Memoria,"iJeutst. 
Trim.  Hist.,  VI,  307. 

5  BONWICK,  Daily  Life  and  Origin  of  the  Tasmanians,  73,  74.  The  Tasmanian 
woman,  he  adds,  even  when  divorced  "  was  by  no  means  free,  as  the  tribe  exercised 
jurisdiction  "  in  her  "  affairs  and  the  disposal  of  her  person.  She  soon  came  under 
bondage  again  to  another  man,  though  perhaps  to  a  younger  than  her  first  affianced 
one ;  as  the  young  fellows  were  in  most  instances  supplied  with  their  first  partners 
from  the  overflowing  establishments  of  their  seniors,  or  by  the  grant  of  a  cast-off  bit 
of  property." 

6  Westeemaeck,  op.  cit.,  .520,  521,  citing  Deut.  24:1;  Meiee  and  SchOmann,  Der 
attische  Process,  511;  McKenzie.  Studies  in  Roman  Law,  123  ff . ;  Geimm,  Rechts- 
alterthumer,  454.  On  the  Hebrews  see  also  Letodeneau,  op.  cit,,  302,  303;  Glasson, 
Le  mariage  civil  et  le  divorce,  145  ff. 


'     Early  History  of  Divorce  233 

the  case  on  the  island  of  Nias;'  while  among  the  Galela 
and  Tobelc^ese  the  man  may  put  away  his  wife  on  account 
of  laziness ;  and  elsewhere  he  may  do  the  same  because  she 
is  tiresome  or  because  she  lacks  skill  for  household  service.^ 
Under  the  existing  law  of  Islam  the  woman  has  gained  a 
limited  right  of  divorce.  By  the  form  called  chol  she  may 
buy  her  release;  and  in  this  case  "a  restoration  of  the 
marriage  bond  is  impossible."  Again,  for  certain  specified 
faults  of  the  husband,  she  is  granted  a  separation  through 
fasch,  or  judicial  decree.'  On  the  other  hand,  by  IPan,  or 
solemn  oath  before  the  cadi,  a  husband  is  able  to  put  away 
the  spouse  whom  he  believes  to  be  unfaithful;*  but  in 
general  the  right  of  the  man  to  reject  the  woman  without 
assigning  any  cause  whatever  is  absolutely  unrestrained. 
The  great  majority  of  divorces  among  Moslem  peoples  take 
the  form  of  taldq,  or  repudiation.  It  is  only  necessary  for 
the  husband  who  is  tired  of  his  wife  to  say  to  her  '■'"mutdl- 
laka,''"'  "Thou  art  dismissed."  ^  In  harmony  with  the  old 
Arabian    custom  the  procedure  by  taldq  may  consist  of  a 

1  Post,  Familienrecht,  253,  254;  Ribdel,  in  ZFE.,  XVII,  78. 

2  "In  den  Gallareichen  kann  der  Mann  die  Frau  verstossen,  weil  sie  ihm  lang- 
weilig  geworden  oder  zu  den  hauslichen  Geschaften  nicht  tauglich  ist.  Will  er 
dagegen  keine  Scheidung,  sondern  nur  Trennung,  so  ergiebt  sich  die  Frau  der 
Prostitution  und  kann  vom  Gatten  fur  sich  und  ihre  illegitimen  Kinder  Wohnung 
und  die  nOthigen  Nahrungsmittel  beanspruchen."—  Post,  Familienrecht,  253, 254.  In 
New  Caledonia,  likewise,  the  wife  may  be  put  away  because  she  bores  her  husband: 
Letourneaii,  op.  cit.,  285. 

3  The  wife  is  entitled  to  a  divorce  in  this  way  when  the  husband  (1)  leaves  her 
without  support ;  (2)  accuses  her  falsely  of  unfaithfulness ;  (3)  refuses  to  acknowledge 
the  child  which  she  has  borne  him ;  (4)  when  he  abandons  the  faith ;  or  (5)  fails  in 
"marital  duty  "  :  Hellwald,  Die  viensch.  Familie,  409.  But  in  practice  little  use  is 
made  of  this  form,  the  woman  preferring  instead  to  declare  before  the  judge  that  she 
is  in  a  condition  of  matrimonial  "insurrection,"  by  which  means  the  husband  is 
usually  led  to  "  repudiate  "  her:  idem,  loc.  cit. 

*The  procedure  by  oath  is  allowed  when  the  husband  is  persuaded,  but  cannot 
prove,  that  the  wife  is  pregnant  by  another  man;  and  the  action  must  precede  the 
accouchement.  The  wife  may  take  a  similar  oath  that  the  husband's  belief  is 
unfounded :  Hellwaxd,  op.  cit.,  409. 

5  But  other  phrases,  such  as  "  Cover  thee  with  thy  veil,"  or  "  Seek  another  man," 
may  be  employed:  Hellwald,  op.  cit.,  409.  Compare  the  three  formulas  used  ia 
Algiers :  Letoueneau,  op.  cit.,  297. 


234  Matrimonial  Institutions 


"triple  declaration"  or  three  successive  divorces.  After  the 
first  pronouncement  of  the  formula  the  repudiated  woman 
remains  three  months  in  her  harem  at  the  man's  cost,  and 
he  is  at  liberty  to  take  her  back  if  he  will.  Indeed,  a  single 
tender  glance  or  word  of  concession  is  suflficient  to  restore 
the  marriage.  Should  he  not  reclaim  her  until  the  specified 
term  is  passed,  he  may  then  do  so  only  in  case  she  has  not 
already  taken  a  new  husband,  and  by  paying  her  a  "second 
time  the  full  amount  of  the  morning-gift  as  stipulated  at 
their  marriage."  A  second  or  even  a  third  separation  from 
the  same  wife  may  be  had  by  repetition  of  this  process ;  but 
the  third  declaration,  unlike  the  other  two,  is  irrevocable, 
definitively  dissolving  the  marriage  bond.' 

Among  a  great  many  peoples,  even  those  comparatively 
little  advanced  in  general  culture,  the  husband  is  permitted 
to  divorce  his  wife  only  for  definite  reasons.^  The  causes  of 
legal  divorce  most  constantly  recurring  are  adultery  and 
sterility.  In  a  great  many  cases  divorce  is  absolutely  for- 
bidden after  a  child,  usually  a  son,  is  born.  It  should  be 
carefully  noted  that  many  of  the  alleged  examples  of  divorce 
on  the  ground  of  sterility  are,  strictly  speaking,  not  divorces 
at  all;  but  rather  illustrations  of  the  so-called  "  proof - 
marriages"  so  often  met  with  in  all  parts  of  the  world.  Not 
until  the  term  of  probation  is  "blessed"  by  the  arrival  of 
offspring  is  the  "marriage"  in  such  cases  regarded  as  com- 
plete, though  this  may  not  always  be  the  implied  condition. 
With  the  proof -marriages  are  sometimes  described  as  iden- 

1  Hellwald,  op.  cit.,  410,  411;  following  especially  Vincenti,  Die  Ehe  im  Islam, 
22,  23.  After  the  third  divorce  or  declaration  there  is  still  a  way  in  which  the  man 
can  get  his  wife  back  when  she,  in  due  legal  form,  has  married  another  man,  and  has 
been  repudiated  by  him.  This  procedure  is  usually  collusive  by  means  of  a  "  straw 
husband  " :  Hellwald,  loc.  cit.,  citing  Efendi,  Tiirkische  Skizzen,  II,  15.  In  general 
see  Ungee,  Z)ie -E/ie,  48-50;  Letoueneau,  op.  cit.,  289-99,  on  the  triple  declaration 
among  Mohammedan  peoples  of  Africa. 

2 These  cases  are  discussed  by  FosT,  FamiUenrecht,  253-55;  idem,  Grundlagen, 
269;  idem,  Afrikanische  Jurisprudenz,  I,  439-41;  Letodenead,  op.  cit.,  286  ff. ;  Wes- 
TEEMARCK,  op.  cit.,523,  524;  Feiedeichs,  "  Familienstufen  nnd  Eheformen,"  ZVR., 
X,  251. 


Early  History  of  Divorce  235 

tical  in  character  the  "time-marriages"  found  among  many 
peoples;  but  this  form  of  union  is,  properly  speaking, 
usually  a  real  marriage  not  dependent  for  its  consummation 
upon  the  birth  of  a  child,  being  stipulated  in  advance  for  a 
certain  term.^  Besides  the  two  leading  grounds  of  divorce 
already  mentioned,  many  others,  some  of  them  trivial,  are 
prescribed  by  the  laws  of  various  peoples.  Such  are  mis- 
treatment, deformity,  laziness,  desertion,  and  incompati- 
bility of  temper.  Sometimes  the  consent  of  the  chief  or 
other  public  authority  is  requisite.  So,  among  the  Hotten- 
tots, a  man  may  divorce  his  wife  only  "upon  shewing  such 
cause  as  shall  be  satisfactory  to  the  men  of  the  kraal  where 
they  live;"^  and  among  the  aborigines  of  Victoria,  as  already 
seen,  a  childless  wife  may  be  dismissed  for  serious  miscon- 
duct only  when  the  sanction  of  the  tribal  chief  is  obtained.' 
By  Chinese  law  divorce  must  be  granted  in  case  of  any  of 
the  numerous  impediments  *  to  marriage ;  or  when  the  wife 
is  guilty  of  adultery.  For  that  offense  the  aggrieved  hus- 
band may  kill  the  offending  wife  and  her  paramour,  if  he 

1  On  these  so-called  "  Zeitehen  "  and  "  Ehen  auf  Proben,"  in  addition  to  the  ref- 
erences, chap,  ii,  p.  49,  note  2,  see  Post,  Familienrecht,  75-79;  idem,  Afrikanische 
Jurisprudenz,  I,  321-23;  Staecke,  Primitive  Family,  258-60;  Westeejiaeck,  op.  cit., 
523,  524,  who  apparently  includes  these  cases  under  the  head  of  divorce  for  sterility. 
"Proof-marriages"  are  said  even  now  to  be  customary  in  Yorkshire:  Bunsen,  in 
ZFE.,  XIX,  376;  Post,  op.  cit.,  77;  and  a  good  example  is  afforded  by  the  Scotch 
"hand-fasting"  prevalent  in  the  eighteenth  century :  "Two  chiefs  agreed  that  the 
heir  of  the  one  should  live  with  the  daughter  of  the  other  as  her  husband  for  a  year 
and  a  day;  if  at  the  end  of  that  time  the  woman  had  become  a  mother,  or,  at  any 
rate,  if  she  was  pregnant,  the  marriage  was  regarded  as  valid,  even  if  unblest  by  a 
priest;  "  otherwise  the  connection  was  dissolved:  Staecke,  op.  cit.,  260;  Skene,  The 
Highlanders  of  Scotland  (London,  1837),  166.  Cf.  Tegg,  The  Knot  Tied,  222,  223; 
Beand,  Popular  Antiquities,  II,  87,  88 ;  Bullingee,  The  Christen  State  of  Matri- 
mony e  (1541),  48,  49;  WooD,  The  Wedding  Day,  113,  184,  185;  Stiles,  Bundling,  17, 
19.  For  examples  of  temporary  unions  among  the  American  Indians  see  Westee- 
MAECK,  op.  cit.,  518,  519.  Such  marriages  are  found  among  the  Winnebagoes: 
Thwaites,  in  Wis.  Hist.  Coll.,  XII,  427. 

2  Westeemaeck,  op.  cit.,  524 :  op.  Kolben,  The  Present  State  of  the  Cape  of  Good- 
Hope  (London,  1731),  I,  157.  However,  this  rule  may  in  practice  have  little  meaning: 
see  Post,  Afrikanische  Jurisprudenz,  I,  435,  who  also  cites  Kolben. 

3  Dawson,  Australian  Aborigines,  33. 

*  For  the  impediments  to  matrimony,  all  of  which  are  diriment,  see  MOllen- 
DOEFF,  Das  chin.  Familienrecht,  9-20. 


I 


236  Matrimonial  Institutions 

catch  them  in  flagrante  delicto.  But  should  the  woman  not 
be  slain,  she  is  punished,  and  the  husband  may  drive  her 
away  or  even  sell  her  as  a  concubine,  provided  he  has  not 
pandered  to  the  crime  or  does  not  sell  her  to  the  guilty  man.' 
Furthermore,  a  marriage  may  be  dissolved  by  mutual  agree- 
ment;^ and  the  husband  is  entitled  to  a  divorce  when  the 
wife  strikes  him,  is  addicted  to  drunkenness  or  opium 
smoking,  has  been  defiled  before  marriage,  or  when  she 
leaves  his  house  against  his  will.^  Besides  all  these  grounds, 
established  by  statute  or  recent  usage,  Confucius  allows  the 
husband  a  divorce  for  any  of  seven  faults  of  the  wife:  bar- 
renness, wantonness,  inattention  to  parents-in-law,  talkative- 
ness, theft,  jealousy,  and  inveterate  disease  such  as  leprosy.* 
But  these  grounds  will  not  always  warrant  a  separation. 
"They  may  be  outweighed  by  particular  merits  of  the  woman 

1  MOiiLENDOEPT,  Das  chin,  Familienrecht,  32.  In  China  a  man  is  legally  inca- 
pable of  adultery.  If  the  husband  slay  either  the  man  or  the  woman  taken  in 
flagrante  delicto,  he  must  do  so  on  the  instant;  "  though  it  is  also  allowable  for  the 
husband  to  kill  the  adulterer  outside  the  house,  if  it  be  in  chase.  But  if  the  husband 
first  ties  up  the  adulterer,  and  then  kUls  him,  he  will  be  guilty  of  a  transportable 

offence If  the  husband  kills  the  wife  afterwards,  he  will  be  liable  to  three 

years'  transportation  and  100  blows." — A-LABASTEE,  Chinese  Criminal  Law,  187,  188. 
If  the  paramour  kills  the  husband,  the  wife  is  strangled,  whether  she  knew  of  the 
crime  or  not,  provided  the  husband  has  not  consented  to  the  adultery.  Grace  is 
shown  the  woman  only  "when  the  murder  was  sudden  and  unpremeditated;"  but 
then  only  in  case  that  she  "  fly  to  the  rescue,  and  give  the  alarm,  and  do  her  best 
to  bring  the  murderer  to  justice  by  denouncing  him  to  the  authorities." — Alabas- 
TEE,  op.  cit.,  194.  The  price  of  the  guilty  wife  sold  as  a  concubine  falls  to  the  state: 
MOllendoeff,  32. 

2  The  agreement,  however,  must  be  in  good  faith.  Should  the  wife  plan  the 
divorce  so  as  to  form  a  punishable  relation  with  another  man,  it  is  void,  and  the  hus- 
band may  retain  the  woman  or  sell  her  to  another  as  in  the  case  of  unfaithfulness: 
KoHLEE,  "Aus  dem  chin.  Civilrecht,"  ZVR.,  VI,  376. 

3  MOllendoeff,  op.  cit.,  32;  Hellwald,  op.  cit.,  380,  381;  Axabastee,  op.  cit., 
182  ff . ;  Geosse,  Die  Fortnen  der  Familie,  225  ff. ;  Katscecee,  Bilder  aus  dem  chin. 
Lebeni,  90  ff.,  passim. 

■*  If  he  puts  away  his  wife  without  just  cause,  he  is  to  receive  eighty  blows  with 
the  bamboo  and  take  her  back  :  Wake,  Marriage  and  Kinship,  232;  Kohlee,  loc.  cit., 
37.'i;  Westeemaeck,  op.  cit.,  523;  Lexooeneao,  op.  cit,  300,  301;  DoohiTTLE,  Social 
Life  of  the  Chinese,  I,  106,  107. 

According  to  Tscheng-ki-Tong,  China  und  die  Chinesen,  55,  barrenness  is  the 
only  serious  ground  of  divorce  in  China,  and  even  of  this  little  use  is  made,  particu- 
larly by  the  aristocracy ;  but  this  view  is  not  sustained  by  other  evidence,  divorce 
being  frequent  among  the  lower  classes:  Hellwald,  op.  cit.,  380,  381. 


\ 


Early  History  of  Divorce  237 

or  by  special  circumstances.  If  the  wife  has  mourned  three 
years  for  'the  husband's  parents;  if  the  family  has  grown 
rich  during  the  marriage;  or  if  the  wife  has  no  longer  rela- 
tives to  receive  her,  then  the  seven  assigned  grounds  fail, 
the  divorce  is  not  only  forbidden  but  void,  and  the  husband 
must  retain  his  wife.'"  This  is  not  the  only  wise  and 
righteous  provision  of  the  Chinese  law,  however  despotic  as 
a  rule  may  be  the  husband's  power.  Normally  the  wife 
cannot  sue  for  divorce ;  still  practically  she  enjoys  the  right 
of  separation  in  several  important  contingencies.  Under 
judicial  approval,  for  instance,  she  may  release  herself  from 
the  marriage  bond  in  case  of  three^  years'  desertion  without 
word  from  her  husband.  So  likewise,  when  she  suffers  grave 
insult  from  the  husband's  parents,  she  may  return  to  her 
own  family,  reclaim  her  dotal  gift,  and  demand  a  contribu- 
tion for  her  support. ''* 

In  modern  Japan  divorce  is  regulated  according  to  the 
principles  of  western  law ;  but  formerly  the  husband's  power 
was  governed,  as  in  China,  by  the  rules  of  Confucius.* 
Furthermore,  in  spirit    the  Aztec    law  of   divorce  bears  a 

1  KoHLEE,  loc.  cit.  On  the  other  hand,  the  interpretation  of  these  rules  may 
often  be  "  too  elastic  "  in  favor  of  the  man.  In  one  of  the  old  Chinese  books,  accord- 
ing to  Westeemaeck,  op.  cii.,  524,  525,  "when  a  woman  has  any  quality  that  is  not 

good,  it  is  but  just  and  reasonable  to  turn  her  out  of  doors Among  the  ancients 

a  wife  was  turned  away  if  she  allowed  the  house  to  be  full  of  smoke,  or  if  she  fright- 
ened the  dog  with  her  disagreeable  noise  " :  citing  Navaeette,  An  Account  of  the 
Empire  of  China  (London,  1704),  73. 

2  According  to  Alabaster,  op.  ci^,  190,  "it  would  seem  that  the  husband  can 
claim  no  marital  rights,  if  he  has  been  for  five  years  in  exile,  without  writing  to  his 
family,  and  his  wife  has  in  the  meantime  married  again,  although  the  law  is  not 
clear." 

3  KoHLEE,  loc.  cit.,  375,  376.  The  woman  has  also  the  right  of  divorce  when  the 
husband  is  a  leper  or  becomes  such  after  marriage;  when  he  is  impotent;  and  either 
party  may  claim  the  right  when  deceived  by  a  false  allegation  in  the  marriage  con- 
tract: MOllendoeff,  op.  cit.,  32,  33;  Alabastee,  op.  cit.,  182. 

See  further  on  Chinese  divorce  and  marriage,  Legge,  Life  and  Teachings  of 
Confucius,  106,  passim;  Hoc,  Chinese  Empire,  II,  218-20,  262,263;  Wake,  Marriage 
and  Kinship,  229-35. 

*KoHLEE,  "Studien  aus  dem  japanischen  Recht,"  ZVR.,  X,  449.  Cf.  Wake,  op. 
cit.,  233,  note;  Westeemaeck,  op.  cit.,  .525:  Hellwald,  Die  mensch.  Familie,  383-86; 
Geosse,  Die  Formen  der  Familie,  228-31. 


238  Matrimonial  Institutions 

striking  resemblance  to  that  of  China.  Only  in  special 
cases,  not  now  understood,  had  the  woman  a  right  of  sepa- 
ration ;  and  the  husband  could  put  away  his  wife  only  for 
definite  reasons,  such  as  sterility  and  certain  defects  of 
character,  as  when  she  proved  herself  careless,  impatient, 
lazy,  or  quarrelsome.  Divorce,  however,  was  discouraged; 
and  even  when  a  legal  reason  was  alleged,  it  could  not  be 
effected  without  a  judicial  decree.  The  decree  did  not 
declare  the  separation;  it  merely  allowed  the  plaintiff  in  the 
matter  "to  do  what  he  should  find  good."  Thus  permission 
was  given  for  divorce;  but  the  judge  avoided  pronouncing 
the  separation  in  direct  words.' 

5.  Finally,  in  further  illustration  of  the  endless  variety  of 
popular  customs,  it  must  be  noted  that  among  many  peoples 
the  wife  also  has  the  right  of  divorce.  Often,  as  already 
seen,  she  may  leave  her  husband  at  pleasure  or  on  the 
slightest  pretext.  It  needs  but  a  glance  at  the  usages  of 
the  American  Indians  in  this  regard  to  perceive  that  the  lot 
of  the  married  woman  among  barbarous  or  even  savage 
tribes  is  not  always  so  dark  as  it  is  frequently  painted ;  ^  and 
many  similar  proofs  elsewhere  exist.^  Among  the  inland 
Columbians,  according  to  Bancroft,  "either  party  may  dis- 
solve the  marriage  at  will."*     A  similar  rule  prevails  with 

1  KoHLEE,  "  Das  Recht  der  Azteken,"  ZVR.,  XI,  60;  Klemm,  Kulturgeschichte,  V, 
35.  Among  the  Aztec  Otomis  the  parties  could  separate  after  the  first  night ;  but, 
possibly,  this  is  a  case  of  proof-marriage;  and  in  Michoacan  the  same  rule  prevailed, 
if  they  swore  that  they  had  not  "seen  one  another":  Kohler,  loc.  cit.,  61.  The 
divorce  laws  of  the  Chins  or  Khyengs,  in  farther  India,  are  particularly  interesting; 
and  in  some  respects  they  are  similar  in  principle  to  those  of  the  Chinese  and 
Aztecs :   Kohlek,  "  Das  Recht  der  Chins,"  ZVR.,  VI,  186  £F.,  191  £F. 

2C/.  Spencer,  Principles  of  Sociology,  I,  722,  723;  Mason,  Woman's  Share  in 
Primitive  Culture,  229,  for  suggestive  remarks  in  this  connection.  Westeemarck, 
op.  cit.,  526-29,  discusses  this  topic  with  characteristic  minuteness,  giving  in  a  note  a 
list  of  peoples,  with  authorities,  among  whom  the  wife  has  the  right  of  divorce  abso- 
lutely or  on  conditions. 

3  So  in  Tahiti,  the  Sandwich  Islands,  the  Marianne  and  Caroline  groups,  the 
Indian  Archipelago,  in  Africa,  and  elsewhere ;  see  the  examples  of  free  divorce  at 
the  option  of  either  party  and  the  authorities  already  mentioned  above.  Cf. 
Letournead,  op.  cit.,  287. 

*  Bancroft,  Native  Races,  I,  277. 


Early  History  of  Divorce  239 

the  Moxos  of  South  America,  the  tribes  of  California,  as 
well  as  among  the  Iroquois  and  their  neighbors.'  "If  a 
Bonak  wife  gets  up  and  leaves  the  man,  he  has  no  claim 
ever  after  on  her;"^  and,  according  to  Schoolcraft,  when  the 
Navajo  woman  marries,  "she  becomes  free,  and  may  leave 
her  husband  for  sufficient  cause."  ^  The  Guanan*  and  Gua- 
temalan^ wife  is  equally  privileged;  and  the  Sioux  and 
other  Dakota  women  are  often  notoriously  indei)endent,  even 
beating  their  husbands  for  unfaithfulness,  and  for  this  or 
other  just  cause  returning  to  their  own  kindred."  Some- 
times the  wife  has  the  right  of  divorce  only  on  definite 
grounds,  which  may  differ  from  or  be  the  same  as  those 
permitted  to  the  husband.'  Often  the  reasons  which  satisfy 
the  moral  sense  of  the  community  are  very  slight ;  at  other 
times  they  are  grave  and  few  in  number.  Among  the 
Shans,  "should  the  husband  take  to  drinking  or  otherwise 
misconducting  himself,  the  woman  has  the  right  to  turn  him 
adrift,  and  to  retain  all  the  goods  and  money  of  the  part- 
nership."^ In  "Eastern  Central  Africa  divorce  may  be 
effected  if  the  husband  neglects  to  sew  his  wife's  clothes,  or 
if  the  partners  do  not  please  each  other.^  Theoretically 
among  the  Athenians  the  woman  could  demand  a  divorce 
for  mistreatment,  "in  which  case  she  had  merely  to  announce 

1  Ibid.,  412;  Morgan,  Ancient  Society,  454  (Iroquois);  Letotjeneau,  op.  cit.,  288. 

2  Westeemajbck,  op.  cit.,  527 :  ap.  Schoolceaft,  Indian  Tribes,  IV,  223  ff. 

3  Westeemaeck,  op.  cit.,  527:  ap.  Schoolceaft,  Indian  Tribes,  IV,  214,  But  it 
appears  to  be  a  point  of  honor  for  the  abandoned  husband  to  avenge  himself  by 
killing  someone:  Bancroft,  op.  cit,  I,  512;  Letouenead,  op.  cit,  288. 

*  Westeemaeck,  op.  cit.,  527. 

5  Banceoft,  op.  cit.,  II,  672 ;  Letodeneau,  op.  cit,  288. 

6  So  among  the  Santals  (Dakotas) :  Letotjeneau,  loc.  cit, 

7  For  this  class  of  peoples  see  Post,  Familienrrrht,  250,  254-58 ;  idem,  Afrika- 
nische  Jurisprudenz,  I,  436-39;  Westeemaeck,  op.  cit.,  526-29. 

8  Westeemaeck,  op.  cit.,  527,  528:  ap.  Colquhoun,  Amongst  the  Shans,  295. 

9  Westeemaeck,  op.  cit.,  528:  ap.  Macdonald,  Africana,  1, 140. 


240  Matrimonial  Institutions 

her  wish  to  the  archons;'"  while  the  Kafir  wife  "who  is 
beaten  or  not  provided  with  sufficient  food  and  clothes  is 
entitled  to  return  to  her  parents."^  In  fact,  the  right  of 
the  woman  to  repudiate  her  husband  for  mistreatment  is 
alleged  to  be  the  general  rule  according  to  negro  custom.* 
Even  by  modern  Mohammedan  legislation  "divorce  may,  in 
certain  cases,  take  place  at  the  instance  of  the  wife,  and,  if 
cruelly  treated  or  neglected  by  her  husband,  she  has  the 
right  of  demanding  divorce  by  authority  of  justice."* 

II.       THE    FORM    OF    DIVORCE 

The  form  of  divorce,  like  the  rules  relating  to  the  right 
and  its  conditions,  varies  greatly  among  the  races  of  man- 
kind. Very  frequently,  usually  among  the  lowest  peoples,  it 
takes  place  without  any  ceremony.'^  Sometimes,  however, 
the  procedure  is  fixed  by  law  or  custom.  A  symbolical  act  is 
occasionally  sufficient,  as  with  the  east  African  Wazaramo, 

1  Westeemaeck,  op.  cit.,  528,  529;  Glasson,  Le  manage  civil  et  le  divorce,  152  £f. ; 
Unger,  Die  Ehe,  60;  Plutaech's  Lives  (London,  1890),  Solon,  68.  Primitively  the 
Grecian  wife  had  little  liberty  in  this  regard ;  even  later  it  was  always  diflBcult  to 
enforce  her  right  of  divorce;  and  repudiation  was  regarded  as  a  disgrace:  Lecky, 
History  of  European  Morals,  II,  287,  289;  Letoueneau,  op.  cit.,  304. 

2  Westeemaeck,  op.  ci<.,  .528,529;  VJ xnz,  Anthropologic,  11,389;  Vost,  Afrika- 
nische  Jurisprudenz,  I,  436.  But  in  case  of  the  Kafirs,  the  chief  decides  whether  the 
woman  has  just  cause :  Post,  op.  cit.,  438. 

3  "  Wird  die  Frau  misshandelt  oder  vernachlSssigt,  so  kann  sie  die  LOsnng  der 
Ehe  verlangen;  dies  ist  allgemeines  Negerrecht." — Kohlee,  "Ueber  das  Negerrecht, 
namentlich  in  Kamerun,"  ZVR.,  XI,  441,442.  See  also  Heneici,  "Das  Recht  der 
Epheneger,"  tbid.,  1.35;  Bastian,  Rechtsverhdltnisse,  179  (Gold  Coast). 

''Westeemaeck,  op.  cit.,  .528,  529:  ap.  AmIe'  Ai.f,  Personal  Law  of  the  Mnhom- 
medans  (London,  1880),  chaps,  xii  ff. 

"According  to  the  Talmudic  Law,  the  wife  is  authorized  to  demand  a  divorce  if 
the  husband  refuses  to  perform  his  conjugal  duty,  if  he  continues  to  lead  a  disor- 
derly life  after  marriage,  if  he  proves  impotent  during  ten  years,  if  he  suffers  from 
an  insupportable  disease,  or  if  he  leaves  the  country  forever." — Westeemaeck,  528; 
Glasson,  op.  cit.,  149  ff.  Consult  also  Ameam,  The  Jewish  Law  of  Divorce,  63-77,  who 
gives  an  interesting  discussion  of  the  woman's  power  of  divorce;  and,  besides  the 
causes  just  named,  mentions  also  "refusal  to  support,"  "apostasy,"  "wife-beating," 
when  the  wife  is  not  at  fault,  and  "false  charge  of  ante-nuptial  incontinence."  Cf. 
Letoueneau,  op.  cit.,  303. 

5  For  examples  see  Post,  Familienrecht,  258;  idem,  Afrikanische  Jurisprudenz, 
I,  452. 


Early  History  of  Divorce  241 

where  the  husband  by  way  of  divorce  hands  the  wife  a  piece 
of  holcus  reed,  on  receiving  which  she  must  at  once  leave 
the  house  or  be  driven  out.*  The  Unyoro  husband  observes 
a  similar  rite.^  It  is  likewise  a  private  transaction  in 
Morocco,  where  the  man  rejects  the  woman  by  a  bill  of 
divorce.  The  same  procedure  may  be  employed  in  China; 
and  a  three-fold  proclamation  before  witnesses  is  adequate 
among  the  Somali.*  In  Dawan  (west  Timor)  it  takes  place 
in  a  council  composed  of  the  relations  of  the  man  and  wife, 
where  the  cause  is  weighed  and  determined;  but  in  this 
assembly  neither  the  chiefs  nor  the  eldest  have  any  voice.* 
Similar  councils  are  common  among  African  tribes.*  In 
many  instances,  however,  exactly  the  opposite  rule  prevails, 
the  decision  of  the  "eldest,"  the  "chiefs,"  or  of  some  other 
magisterial,  priestly,  or  judicial  authority  being  requisite 
for  a  legal  separation.^ 

III.   THE  LEGAL  EFFECTS  OF  DIVORCE 

Not  less  diversified  are  the  customs  governing  the  effects 
of  divorce;  and  here,  as  in  the  case  of  its  varying  forms  and 
conditions,  one  is  almost  as  often  surprised  by  the  reason- 
ableness and  stability  of  early  institutions  as  he  is  shocked 
at  their  harshness  or  injustice  when  regarded  from  the  civi- 
lized standpoint.  In  the  disposal  of  the  children  the  exist- 
ing system  of  kinship  is  very  widely  determinative.  Among 
a  great  many  peoples,  in  case  of  separation,  the  children 
follow  the  father  or  the  mother  according  as  mother-right  or 

1  Ibid.,  I,  452. 

2  Here  the  man  divorces  his  wife  by  cutting  in  two  a  piece  of  "  Rindenstoff,  von 
dem  er  eine  Halfte  behalt  und  eine  Halfte  dem  Vater  der  Frau  zuschickt." — Post, 
loc,  cit. 

3  MOllendoeff,  Das  chin.  Familienrecht,  33;  Post,  op.  cit.,  I,  452. 

<  Post,  Familienrecht,  259.  5  Post,  Afrikanische  Jurisprudenz,  I,  453. 

6  In  the  Indian  Archipelago  a  priest  is  necessary,  for  instance,  on  tho  islands  of 
Gorong  and  Serauglao ;  among  the  Buginese ;  as  also  with  the  Makassars,  whore  ho 
receives  3  gulden  for  his  trouble :  Post,  Familienrecht,  259,  260. 


242  Matrimonial  Institutions 

father-right  prevails;'  and  where  a  mixed  system,  or  rather 
a  coincidence  of  mother-right  and  paternal  authority,^  is 
found,  or  else  relationship  is  cognatic,  they  are  divided 
between  the  parents  or  their  kindred.^  The  division  is 
determined  by  a  variety  of  rules  among  different  peoples. 
Often  they  are  equally  divided,  regardless  of  sex.*  Some- 
times, as  in  Bulgaria,^  Burma,^  and  among  the  Natchez 
Indians,^  the  daughters  follow  the  mother  and  the  sons 
remain  with  the  father.  In  still  other  cases,  as  in  certain 
South  Slavonian  districts,  the  father  takes  the  adult  children, 
while  those  of  tender  years  are  left  in  the  mother's  hands. 
Such  is  the  rule  in  Zara  and  in  Bosnia."  In  Lika,  accord- 
ing to  Krauss,  when  all  the  children  are  males,  the  mother 
receives  the  minors,  if  the  father  consents ;  but  when  they  are 
of  both  sexes,  the  sons  follow  the  father  and  the  daughters 
the  mother.  In  this  last  case,  however,  the  man  is  required 
to  pay  the  divorced  woman  whatever  is  needed  to  supply  the 
bridal  outfit  of  the  daughters  when  they  reach  marriage- 

1  So  in  case  of  divorce  among  the  Omahas,  where,  as  Doesey  believes,  "  father- 
right  has  succeeded  mother-right,"  the  woman  cannot  take  the  children  with  her  if 
the  man  is  unwilling;  although  in  practice  they  "are  sometimes  taken  by  their 
mother,  and  sometimes  by  her  mother  or  their  father's  mother."  —  "Omaha  Sociol- 
ogy," III.  Rep.  of  Bureau  of  Eth.,  225,  262. 

In  China  a  divorce  completely  dissolves  the  marriage;  the  woman  returns  to 
her  family,  if  it  will  receive  her;  the  children  remain  with  the  father;  and  the  pur- 
chase price  is  returned  to  him,  unless  his  conduct  has  caused  the  divorce.  When 
her  family  declines  to  receive  the  woman  she  becomes  sui  juris:  MOiiLENDOBFF,  Dos 
chin.  Familienrecht,  34. 

2  See  chap,  i,  21  ff.,  above. 

3  Post,  Familienrecht,  260-62;  idem,  Afrikanische  Jurisprudenz,  I,  447,  448; 
idem,,  Grundlagen,  276,  277. 

*  So  in  the  Malay  Rawas,  where  kinship  is  cognatic.  Here,  in  case  of  an  odd 
number,  the  undivided  child  is  left  temporarily  with  the  mother,  but  the  father  has 
the  right  on  the  payment  of  the  equivalent  of  8  reichsthaler  to  claim  the  child 
when  it  no  longer  needs  the  mother's  care :  Post,  Familienrecht,  261,  262. 

5  Keauss,  Sitte  und  Branch  der  Siidslaven,  297. 

6  When  the  divorce  is  by  common  consent:  Kohlee,  in  ZVR.,  VI,  172;  Post, 
Familienrecht,  262.  For  African  examples  see  Post,  Afrikanische  Jurisprudenz,  I, 
449. 

"!  Peatz,  Hist,  de  la  Louisiane,  II,  387. 

8  Keauss,  Sitte  und  Branch  der  SUdslaven,  29.5,  296. 


Early  History  of  Divorce  243 

able  age.  When  it  happens  at  the  time  of  separation  that 
all  the  children  are  grown-up  daughters,  they  are  allowed  a 
free  choice  between  the  parents.  Should  none  remain  with 
the  father,  the  mother  and  daughters  are  entitled  to  all  the 
property  gained  during  marriage.'  Often  in  case  of  divorce 
the  children  belong  to  the  innocent  party  ;^  unless  children 
are  regarded  as  a  burden,  when  the  opposite  rule  prevails;' 
or  unless  the  system  of  kinship  determines  the  disposition  of 
the  offspring,  when  an  equitable  adjustment  is  otherwise 
made.  Thus  among  the  African  Fantis  of  the  Gold  Coast 
—  where  by  law  the  children  belong  to  the  mother's  family 
— in  case  of  divorce  through  fault  of  the  woman,  the  man 
is  entitled  to  a  sum  equal  to  22s.  6d.  for  each  child;  and 
when  by  stipulation  the  sons  remain  with  the  father,  he  is 
nevertheless  not  permitted  to  sell  them  or  put  them  in 
pawn.  If  the  divorced  wife  cannot  restore  to  the  husband 
the  price  paid  for  her,  the  children  are  left  with  him  as  a 
pledge  for  the  debt  until  by  their  service  they  have  paid  it 
with  50  per  cent,  interest.  In  this  way,  we  are  told,  children 
often  become  slaves  for  life  to  their  own  father  and  as  such 
are  even  transmitted  to  his  heirs.* 

Very  similar  in  variety  and  character  are  the  rules  gov- 
erning the  disposition  of  the  property  when  a  marriage  is 
dissolved.  These  are  mainly  dependent  in  each  case  upon 
the  general  principles  of  the  family  law  relating  to  property 
rights.^     Sometimes,  as  among  the  South  Slavonians,*^  each 

1  Ibid;  295.  Sometimes  all  the  children  go  to  the  father  or  to  the  houso- 
community,  the  mother  receiving  back  the  dotal  gift:  ibid.,  296,  287. 

2  Post,  Grundlagen,  277;  idem,  Afrikanische  Jurisprudenz,  I,  448  ff. ;  idem, 
Familienrecht,  262,  263. 

3  Thus  in  Morocco  the  husband  who  puts  away  his  wife  must  keep  the  children; 
Post,  Afrikanische  Jurisprudenz,  I,  449. 

*Ibid.,  I,  448.    Cf.  Letoukneau,  Uivolution  du  mariage,  286. 

5  Post,  Grundlagen,  276. 

6  So  in  Lika.  In  Stara  Pazva  the  woman  receives  back  her  dotal  portion ;  and 
in  Stro§inci  common  gains  are  divided:  Keadss,  op,  cit.,  295,  296;  Post,  Familien- 
recht, 316. 


244  Matrimonial  Institutions 

receives  back  the  property  which  he  had  at  the  time  of  the 
marriage,  while  the  common  earnings  are  divided,  though 
not  always  in  equal  portions.'  But  as  the  most  general  rule 
responsibility  for  the  divorce  is  of  vital  importance  in  deter- 
mining the  course  to  be  pursued.  The  man  or  the  woman 
who  arbitrarily  dissolves  the  marriage,  or  whose  guilty  con- 
duct is  the  cause  of  separation,  usually  suffers  a  decided 
disadvantage.  Thus  the  woman  must  restore  the  dotal  gift 
or  the  presents  received  from  her  husband ;  and  the  purchase 
price  must  be  repaid  by  herself  or  by  her  kindred.  On  the 
other  hand,  the  man  who  puts  away  his  wife  without  just 
cause  must  often  forfeit  all  claim  to  restitution  of  the  bride- 
money,  perhaps  lose  his  children,  and  even  suffer  other  pen- 
alties besides,  such  as  the  payment  of  alimony.^ 

Especially  interesting  among  uncivilized  or  backward 
races  are  the  effects  of  divorce  with  respect  to  second  mar- 
riage or  the  remarriage  of  the  parties  to  one  another. 
Everywhere,  apparently,  the  man  who  puts  away  his  wife  or 
has  been  divorced  by  her  is  allowed  to  contract  a  second 
marriage  immediately,  or,  at  any  rate,  after  a  very  short 
interval.^     This  follows  almost  as  a  matter  of  course  where 

1  In  the  archipelago  of  Seranglao  and  Gorong  the  lands  and  houses  which  each 
party  had  before  the  marriage  are  retained  by  each,  and  the  winnings  are  divided, 
the  man  receiving  two-thirds  and  the  woman  one-third :  Post,  loc.  cit. 

2HENKICI,  "Das  Eecht  der  Epheneger,"  ZVR.,  XI,  135  (alimony).  For  many 
examples  of  these  rules  see  Post,  Familienrecht,  316-20;  idem,  Afrikanische  Juris- 
prudenz,  I,  441-47.  Thus  in  Morocco,  should  the  husband  put  away  his  wife  without 
cause,  he  must  give  her  in  presence  of  the  judge  a  present  {etwas  Beliebiges)  in  value 
to  suit  himself;  and  a  similar  present  is  adequate  for  either  party  divorcing  the 
other  among  the  Moorish  Braknas.  In  the  East  African  city  of  Harar  the  husband 
responsible  for  the  separation  loses  the  purchase  price,  pays  the  woman  a  sum  equal 
to  it  in  value,  and  besides  is  obliged  to  support  her  outside  of  his  dwelling  during  a 
term  to  be  fixed  by  the  cadi:  Post,  Familienrecht,  320;  idem,  Afrikanische  Juris- 
prudenz,  I,  443,  445.  In  the  South  Slavonian  Bocca,  Crnagora,  and  Herzegovina  the 
husband  who  puts  away  his  wife  because  she  is  affected  by  a  disease  is  usually 
required  to  give  her  a  lifelong  support;  and  ordinarily,  when  he  is  accountable  for 
the  separation,  he  must  pay  a  fine  of  from  50  to  100  thaler :  Kkauss,  op.  cit.,  567.  For 
various  illustrations  see  Letoueneau,  op.  cit.,  289  ff. 

3  Thus,  among  the  Moors  of  Morocco,  who  almost  all  practice  monogamy,  the 
man  who  rejects  his  wife  is  not  permitted  to  marry  again  within  four  months :  Post, 
Afrikanische  Jurisprudenz,  I,  450. 


Early  History  of  Divorce  245 

wife-capture  or  wife-purchase  exists,  or  where  polygyny 
prevails.'  But  with  regard  to  the  second  marriage  of  a 
divorced  woman  usage  greatly  varies.  Among  a  number  of 
peoples  she  is  free  to  marry  again,  if  she  likes,  even  when 
she  is  responsible  for  the  separation.^  Generally,  however, 
her  freedom  is  restricted  in  this  regard ;  and  this  is  especially 
apt  to  be  the  case  where  wife-purchase  exists;  for  then  the 
legal  rights  of  the  husband  in  the  woman  are  by  no  means 
extinguished  by  the  dissolution  of  marriage.  Her  status  as 
a  wife  must  thus  be  distinguished  from  her  position  as 
property  or  as  the  object  of  contract.  Accordingly  for  this 
or  some  other  reason  the  woman  who  puts  away  her  husband 
is  sometimes  absolutely  forbidden  to  form  a  second  marriage. 
Such  is  the  case  among  peoples  so  little  advanced  as  the 
Ashantees  and  Hottentots;  while  the  Banjun  wife  who 
divorces  her  husband  may  not  marry  again  in  the  same  vil- 
lage where  she  found  her  first  spouse.^  Still  more  rigorous 
is  the  rule  in  Samoa,  where  the  divorced  woman  is  forbidden 
to  remarry  even  after  her  husband's  death.*  Between  the 
extremes  of  entire  freedom  and  entire  prohibition  the  remar- 
riage of  a  woman  is  hampered  by  a  variety  of  conditions, 
some  simple  and  others  severe.  The  Kafir  woman  may  be 
married  again  by  her  father  when  she  has  divorced  her 
husband  with  consent  of  the  tribal  chief.  Sometimes  the 
second  marriage  depends  on  the  return  of  the  marriage-gift 
or  the  purchase  price;  or  the  woman  must  wait  a  certain 
period,  as  three  months  or  a  year,  before  contracting  it.*    In 

1  Cf.  the  suggestion  of  Post,  loc.  cit. 

2  See  the  examples  enumerated  in  Post,  Familienrecht,  264 ;  idem,  Afrikanische 
Jurisprudenz,  I,  453;  among  them  are  the  people  of  Tonga,  Tahiti,  and  Unyoro; 
also  Dawan  (West  Timor)  when  the  divorce  is  through  the  fault  of  the  husband. 

3  Post,  Afrikanische  Jurisprudenz,  I,  450. 

■t  Waitz-Geeland,  Anthropologie,  VI,  129;  Post,  Familienrecht,  263. 

5 Thus  in  the  African  Sarae  the  divorced  woman  must  wait  two  months  before 
remarriage:  Mdnzingee,  Ostaf:  Studien,  i^l ;  among  the  Beni  Amer,  three  months; 
while  the  Marea  woman  is  obliged  to  refrain  for  a  year:  ibid.,  241,  321. 


246  Matrimonial  Institutions 

several  instances,  doubtless  as  the  result  of  purchase,  after 
returning  to  her  father's  house  she  remains  at  her  husband's 
disposal  until  he  formally  sets  her  free ;  while  in  yet  other 
cases  she  may  be  reclaimed  by  him  within  a  certain  definite 
time.  So  with  the  old  Arabians  the  purchased  wife  was 
looked  upon  as  the  husband's  property,  and  hence  divorce 
did  not  release  her  from  his  claims.^  In  Islam,  as  already 
explained,  where  the  ancient  Arabian  rule  of  triple  declara- 
tion of  divorce  still  survives,  a  man  who  has  divorced  his 
wife  by  a  single  or  even  a  second  declaration  of  the  formula 
"can  take  her  again  within  three  months  without  asking  her 
consent."^  Among  the  Bedouins,  in  like  spirit,  when  the 
divorce  takes  place  at  the  instance  of  the  woman,  the  man 
may  refuse  to  repeat  the  formula  of  separation  without 
which  she  cannot  contract  a  second  marriage.*  Very  fre- 
quently the  second  marriage,  whether  of  a  widow  or  a 
divorced  woman,  is  not  looked  upon  as  so  important  as  the 
first.  The  wedding  ceremonial  and  festivities  are  less 
marked;  the  customary  time  of  seclusion  after  the  nuptials 
is  shorter ;  the  bride-price  is  much  smaller ;  or  the  wife  has 
a  less  advantageous  position  with  respect  to  property.*  On 
the  other  hand,  the  widow  or  divorced  woman  who  will 
remarry  has  sometimes  an  important  compensation  for  the 
loss  of  social  prestige,  since  she  may  freely  bestow  her  hand 
in  choosing  a  second  mate.^ 

1  See  especially  on  Arabian  divorce,  Smith,  Kinship  and  Marriage,  91  £E.,  who 
emphasizes  the  effect  of  wife-purchase.  Compare  Post,  Familienrecht,  263.  Among 
the  Kabyles  of  Algiers  for  mistreatment  the  woman  has  the  right  of  "  insurrection ; " 
she  may  return  to  her  father's  house ;  but  without  the  consent  of  her  husband  she 
cannot  remarry:  Letoueneau,  Vivolution  du  mariage,  295.  Cf,  Hanoteau  et 
Letoueneux,  Kabylie,  II,  159, 164, 177  S.  The  custom  of  insurrection  appears  to  be 
general  in  Islam :  Hellwald,  Die  mensch.  Familie,  409. 

2  Smith,  op.  cit.,  93. 

3  Klemm,  Kulturgeschichte,  IV,  151 ;  Post,  Familienrecht,  263,  264. 

*See  the  interesting  proofs  for  various  African  tribes  in  Post,  Afrikanische 
Jurisprudenz,  I,  454-57. 

tibid.,  455.  Sometimes,  as  among  the  equatorial  tribes  of  West  Africa,  the 
widow  shows  a  repugnance  to  second  marriage :  returning  to  her  family,  she  never 
marries  again:  ibid.,  456. 


Early  History  of  Divorce  247 

Perhaps  as  a  general  rule  the  divorced  man  and  woman 
are  as  free  to  remarry  each  other  as  they  are  to  contract  a 
second  marriage  with  other  persons;'  but  sometimes  the 
reunion  is  dependent  upon  the  observance  of  special  legal 
formalities,  or  it  can  take  place  only  after  a  fixed  interval.^ 
In  rare  instances,  as  among  the  ancient  Aztecs,  the  remar- 
riage of  a  divorced  couple  is  absolutely  forbidden.' 

IV.       FREQUENCY    OF    DIVORCE 

The  laws  of  divorce  among  backward  races,  it  is  thus  per- 
ceived, are  full  of  interest  for  the  student  of  social  institu- 
tions. One  comes  from  the  study  with  a  clearer  perception  of 
the  fact  that  such  institutions  are  but  the  outward  expression 
of  human  life  —  of  slow  experience  and  experimentation ;  and 
one  gains  a  deeper  respect  for  the  concrete  results  of  primi- 
tive culture.  Especially  important  is  the  relation  of  divorce 
to  the  stability  of  society.  The  conservatism  prevailing  even 
among  rude  peoples  with  respect  to  the  liberty  of  divorce  is 
remarkable.  This  may  be  due  in  part  to  the  fact  that  prima- 
rily marriage  does  not  rest  so  much  upon  the  sexual  instinct 
as  upon  family  needs.*  In  some  instances,  where  dissolution 
of  the  marriage  is  free  to  either  party,  or  where  it  is  the 
peculiar  right  of  the  man,  divorce  is  exceedingly  rare.^  The 
American    Indian  tribes  are  conspicuous  in  this    regard.^ 

1  Post,  Familienrecht,  265 ;  idem,  Afrikanische  Jurisprudenz,  I,  453,  454. 

2 Thus  in  Dawan  (West  Timor),  when  peace  is  made  between  the  divorced 
oonple,  the  party  who  caused  the  separation  must  pay  the  parents  of  the  other  five 
swine  and  five  pieces  of  linen.  A  year's  interval  must  elapse  with  the  African  Peulhs 
of  Fnta-Jallon.  In  Unyoro  (Africa)  the  reunion  is  celebrated  by  slaughtering  a  beef; 
and  among  the  Berbers  of  Dongola  the  divorced  man  gives  the  woman  two  pieces  of 
cotton  stuff:  Post,  Familienrecht,  265;  idem,  Afrikanische  Jurisprudenz,  I,  453. 

SKOHLEE,  "Das  Recht  der  Azteken,"  ZVR.,  XI,  61;  Cf.  also  Klemm,  JSTuifitr- 
geschichte,  V,  35;  Post,  Famiiienrecht,  265. 

*  Staecke,  Primitive  Family,  258,  259. 

5  For  examples  see  Feiedeichs,  "  Familienstafen  und  Eheformen,"  ZVR.,  X, 
251,  252. 

6  Divorce  is  rare  among  the  Muskogi  and  Natchez  (Florida-Dakota),  the  Caribs, 
the  aborigines  of  Paraguay  and  Nicaragua,  and  the  Eskimo:  Feiedeichs,  loc.  cit.; 
Westeemaeck,  Human  Marriage,  524.  Cf.  Powers,  Tribes  of  Cal.,  239(Wintun); 
DOBSEi,  Siouan Sociology,  243  (rare  in  the  better  class). 


248  Matrimonial  Institutions 

Sometimes  there  is  a  strong  social  sentiment  against  it. 
Such  is  the  case  in  China.  Formerly  among  the  Japanese, 
like  the  ancient  Aztecs,  divorces  were  infrequent  ;^  and  among 
many  less  advanced  peoples,  such  as  the  Afghans,  the  Ved- 
dahs,  or  even  the  Zulus,  the  sentiment  of  love  is  doubtless 
a  stronger  check  upon  instability  of  the  family  than  is  com- 
monly supposed.^ 

The  rules  governing  the  division  of  property  are  impor- 
tant in  this  connection;  for,  as  Westermarck  suggests,  the 
selfish  interests  of  the  husband  "  prevent  him  from  reck- 
lessly repudiating  his  wife.  In  many  instances  divorce 
implies  for  the  man  a  loss  of  fortune."^  In  rare  cases  he  is 
obliged  to  provide  for  the  wife's  support  even  after  the  sepa- 
ration.* Often,  as  already  seen,  the  woman  receives  back 
her  dotal  gift  and  whatever  she  brought  with  her  at  the 
marriage;  while  frequently  the  husband  is  obliged  to  sur- 
render a  portion  or  all  of  the  common  property.  Thus 
"among  the  Karens,  if  a  man  leaves  his  wife,  the  rule  is 
that  the  house  and  all  the  property  belong  to  her,  nothing 
being  his  but  what  he  takes  with  him.  Among  the  Mani- 
puris,  according  to  Colonel  Dalton,  a  wife  who  is  put  away 
without  fault  on  her  part,  takes  all  the  personal  property  of 
the  husband,  except  one  drinking  cup  and  the  cloth  round 
his  loins;"  and  "  similar  rules  prevail  among  the  Galela,  and 
I     in  the  Marianne  Group." ^ 

1  For  China  see  Hellwald,  Die  mensch.  Familie,  380,  381 ;  Tscheng-ei-Tong, 
China  U7id  die  Chinesen,  55 ;  Wake,  Marriage  and  Kinship^  232 ;  Doolittle,  Social 
Life  of  the  Chinese,  I,  106,  107 ;  Medhurst,  in  Trans.  Royal  As.  Soc,  China  Branch, 
IV,  27:  Westeemakck,  op.  cit.,  525.  For  Japan  see  Wake,  op.  cit.,  233;  Wester- 
marck, op.  cit.,  525;  and  for  the  Aztecs,  Bancroft,  Native  Races,  II,  263-65;  Waitz, 
Anthropologic,  IV,  132. 

2  Cf.  the  remarks  of  Wake,  op.  cit.,  218;  and  compare  Ratzel,  Hist,  of  Mankind, 
II,  434  (Zulus) ;  and  Sarasin,  Die  Weddas  von  Ceylon,  I,  458,  468,  469. 

3  Westermarck,  op.  cit.,  531. 

*  Westermarck,  op.  cit,  19,  gives  examples. 

6  Westermarck,  op.  cit.,  531,  and  the  authorities  cited  in  the  notes.  The  same 
influence  was  a  check  upon  divorce  in  Athens :  Letourneau,  op.  cit.,  304. 


Early  History  of  Divorce  249 

The  conservative  influence  of  property  is  even  more 
marked  in  connection  with  wife-purchase — a  powerful  deter- 
rent of  hasty  divorce.  In  the  case  of  a  sale-marriage,  even 
in  the  weakened  form  of  dower  to  the  woman,  the  guilty 
or  responsible  party  usually  suffers  a  decided  disadvantage 
from  the  separation.  The  man  who  repudiates  his  wife 
without  just  cause,  as  already  shown,  may  not  only  forfeit 
his  right  to  reclaim  the  bride-money,  and  incur  other  losses 
on  the  division  of  the  property ;  but  often,  particularly  where 
the  maternal  system  of  kinship  prevails,  he  may  have  to  sur- 
render his  children  as  well;  and  the  woman  who  unjustly 
leaves  her  husband  may  lose  all  that  she  brought  with  her 
into  the  home  or  compel  her  kindred  to  restore  the  purchase 
price.^ 

Here  also  the  results  of  the  genealogical  organization 
must  be  considered.  The  blood-feud,  paradoxical  as  it  may 
seem,  often  acts  as  a  conservative  power  among  primitive 
men.  The  wife's  kindred  may  protect  her  from  the  vengeance 
of  a  brutal  husband  whom  she  has  deserted;  or  they  may 
send  her  back  when  she  has  acted  indiscreetly  or  when  they 
dread  the  wrath  of  the  husband's  clan.  The  organization 
of  society  on  the  basis  of  kinship  has  another  important 
bearing  upon  the  effects  of  divorce.  It  appears  to  be  prac- 
tically a  universal  rule  among  uncivilized  races  that  the 
repudiated  wife  or  the  woman  who  legally  puts  away  her 

1  On  the  conservative  influence  of  wife-purchase  see  Westeemaeck,  op.  cit., 
532,  535,  536;  and  for  curious  and  instructive  illustrations  of  the  effects  of  purchase 
read  especially  the  detailed  account  of  the  law  of  divorce  among  the  Kabyles  of 
Algiers  in  Letoueneau,  op.  cit.,  292-96.  The  man  has  the  sole  right  of  divorce.  As 
a  condition  of  setting  the  woman  free  he  may  demand  the  lefdi,  or  price  of  redemp- 
tion, and  fix  such  other  terms  as  he  pleases;  as  that  the  lefdi  shall  be  double 
or  triple,  if  she  marry  such  or  such  a  man.  The  sum  may  thus  bo  so  large  as  to 
amount  to  a  prohibition  of  marriage.  On  the  other  hand,  a  liberal  price  may  be  an 
inducement  to  free  the  woman.  Among  some  of  these  tribes  the  amount  of  the  lefdi 
is  fixed  by  law,  usually  at  a  sum  higher  than  the  thdvianth,  or  purchase  price  of  a 
virgin  or  a  widow,  so  as  by  working  upon  the  cupidity  of  the  husband  to  induce  him 
to  pronounce  the  triple  formula  and  thus  suffer  the  woman  to  contract  a  new  mar- 
riage.   The  children  under  all  circumstances  follow  the  father. 


250  Matrimonial  Institutions 

husband  shall  return  to  her  own  family  or  clan,  whose  duty 
it  is  to  receive  her.  Accordingly,  the  lot  even  of  the  savage 
woman  has  mitigating  conditions  not  always  accorded  by  the 
laws  of  civilized  society.  "In  savages,"  observes  Mason, 
"where  every  man  and  woman  and  child  is  billeted  some-  | 
where,  there  is  no  such  thing  as  thrusting  man  or  woman 

out  into  nowhere Should  the  man  wish  to  repudiate 

his  wife,  she  cannot  be  sent  out  into  the  jungle  or  forest;  , 
she  must  be  returned  to  somebody."  *  -^ 

1  Mason,  Woman's  Share  in  Primitive  Culture,  229,  230. 


PART  II 
MATRIMONIAL  INSTITUTIONS  IN  ENGLAND 


CHAPTER  VI 

OLD  ENGLISH  WIFE-PURCHASE  YIELDS  TO  FREE 
MARRIAGE 

[Bibliographical  Note  VI. — Tho  leading  sources  for  this  chapter 
are,  of  course,  the  ancient  folk-laws,  drawn  up  after  the  wandering  and 
settlement  of  the  Teutonic  peoples.  Of  these  the  most  complete  and 
the  most  primitive  are  the  old  English  "codes,"  in  Schmid's  Die  Gesetze 
der  Angelsaehsen  (Leipzig,  1858),  until  recently  the  best  edition  avail- 
able; or  in  Thorpe's  Ancient  Laws  and  Institutes  of  England  (8vo,  2 
vols.;  folio,  1  vol.;  Record  Commission,  London,  1840),  which,  though 
not  so  well  edited,  has  the  advantage  of  an  English  version  of  the 
Anglo-Saxon  texts.  But  Liebermann,  in  Die  Gesetze  der  Angelsaeh- 
sen (Halle,  1898-),  is  placing  in  the  hands  of  scholars  a  more  complete 
and  a  thoroughly  critical  edition  which  must  supersede  that  of  Schmid. 
For  Germany  the  Leges  barbarorum  are  contained  in  Walter's  Corpus 
juris  germanici  antiqui  (3  vols.;  Berlin,  1824);  and  in  the  later  and 
better  editions  of  the  Monumenta  germaniae  historica,  particularly  the 
Leges  burgundionum,  edited  by  L.  R.  De  Salis  (4to;  Hanover,  1892); 
the  Leges  alamannorum,  edited  by  Karl  Lehmann  (4to;  Hanover,  1888); 
and  the  general  collection  of  Leges,  edited  by  G.  N.  Pertz,  H.  Brun- 
ner,R.  Sohm,  and  Karl  Zeumer  (5  vols.,  folio;  Hanover,  1835-89).  These 
laws  are  conveniently  grouped  according  to  subject  by  Davoud-Oghlou, 
Histoire  de  la  legislation  des  anciens  Gerniains  (Berlin,  1845).  Beh- 
rend.  Lex  salica  (Berlin,  1874),  has  a  good  edition  of  the  laws  of  the 
Salian  Franks.  There  are  some  passages  of  fundamental  interest,  nota--— 
bly  the  celebrated  c.  18,  in  Tacitus's  Germania;  and  an  interesting 
proof  of  the  surviving  symbols  of  wife-purchase  may  be  found  in  Frede- 
garius,  Gregorii  Turon.  historia  francorum  epitomata  (Vol.  IV  of 
Guadet  and  Taranne's  version  of  Gregory,  171-73,  Paris,  1838;  or  in 
Vol.  II  of  Giesebrecht's  translation,  273-75,  Leipzig,  n.  d.).  An  old 
English  betrothal  {beiveddung)  ritual  of  surpassing  interest  is  pre- 
served in  the  collections  of  Liebermann,  Schmid,  and  Thorpe  referred 
to;  and  the  later  develojjment  of  the  German  betrothal  ceremony  is 
illustrated  by  the  curious  Swabian  ritual  of  the  twelfth  century,  first 
published  by  Massmann  in  Rheinisches  Museum  fiir  Jurisprudenz, 
III  (281  f.),  as  also  in  his  Fluchformularen  (IIQ);  and  later  in  Fried- 
berg's  "  Zur  Geschichte  der  Eheschliessung,"  ZKR.,  I,  369,  370;  in  the 
same  author's  Eheschliessung  (26,  27);  and  in  Sohm's  Eheschliessung 
(319,  820). 

253 


254  Matrimonial  Institutions 

The  modern  literature  of  early  German  and  old  English  marriage 
is  already  very  large.  Among  the  more  important  writings  of  the 
eighteenth  and  early  nineteenth  centuries  are  Gundling,  De  emptione 
uxorum,  dote  et  morgengaba  (Leipzig,  1731);  Ayrer,  Dissertatio  de  jure 
connubiorum  apud  veteres  germanos  (Gottingen,  1738);  Hofmann, 
Handbuch  des  deutschen  Eherechts  (Jena,  1789);  Bohmer,  Ueber  die 
Ehegesetze  im  Zeitalter  Karl  des  Grossen  und  seiner  ndchsten  Regie- 
rung  snachfolger  (Gottingen,  1826-27);  Liebetrut,  Die  Ehe  nach  ihrer 
geschichtlichen  Entwickelung  (Berlin,  1834);  Bosse,  Das  Familien- 
wesen,  oder  Forschungen  iiber  seine  Natur,  Geschichte  und  Rechts- 
verhdltnisse  (1835);  Richecour,  Essai  sur  Vhistoire  et  la  legislation 
des  formes  requises  pour  la  validity  du  mariage  (Paris,  1856); 
Smith,  "  De  la  famille  chez  les  Burgondes,"  in  Mimoires  his  a,  la  Sor- 
bonne  (1864);  and  Eckhardt,  "Das  Witthum  oder  Dotalitium  und  Vi- 
dualitium  in  ihrer  historischen  Entwickelung,"  in  Zeitschrift  filr 
deutsches  Recht,  X  (437  ff.).  But  in  the  literature  of  recent  years  of 
first-rate  importance  is  Sohm's  Das  Recht  der  Eheschliessung  (Weimar, 
1875),  perhaps  the  most  acute  and  able  monograph  ever  written  on  the 
subject;  supplemented  by  his  Trauung  und  Verlobung  (Weimar,  1876). 
The  best  extended  treatise  on  the  history  of  the  marriage  form  or  con- 
tract is  Friedberg's  Das  Recht  der  Eheschliessung  (Leipzig,  1865).  This 
was  preceded  by  his  "  Zur  Geschichte  der  Eheschliessung,"  in  ZKR.,  I, 
362-91;  III,  147-86  (Berlin  and  Tubingen,  1861-63);  and  followed,  in  his 
controversy  with  Sohm  on  the  character  of  the  betrothal,  by  his  Verio- 
bung  und  Trauung  (Leipzig,  1876).  The  Theories  of  Sohm  and  others 
are  examined  by  Habicht,  Altdeutsche  Verlobung  (Jena,  1879);  and, 
from  the  standpoint  of  northern  custom,  by  Lehmann,  Verlobung  und 
Hochzeit  (Munich,  1882);  and  Beauchet,  Mariage  dans  le  droit  is- 
landais  du  moyen  age  (Paris,  1887).  In  this  connection  may  be  read 
Schroeder,  Geschichte  des  ehelichen  GiXterrechts  in  Deutschland  (Stet- 
tin, 1863-74);  his  Rechtsgeschichte  (2d  ed.,  Leipzig,  1894);  as  also  Brun- 
ner's  very  able  Rechtsgeschichte  (Leipzig,  1887);  Ficker,  Untersuchungen 
zur  Rechtsgeschichte  (Innsbruck,  1891-99);  Heusler,  Institutionen  des 
deutschen  Privatrechts  (Leipzig,  1885-86);  Zoepfl,  Deutsche  Rechts- 
geschichte (Braunschweig,  1871-72);  Siegel,  Rechtsgeschichte  (3d  ed., 
Leipzig,  1895);  Lamprecht,  Deutsche  Geschichte  (Vol.  I,  Berlin,  1891); 
Klein,  Das  Eheverlobniss  (Strassburg,  1881);  and  Galy,  La  famille  a 
ripoque  m^rovingienne  (Paris,  1901).  For  many  illustrative  particulars 
should  be  consulted  Grimm's  RechtsalterthUmer  (Gottingen,  1854);  the 
great  work  of  Weinhold,  Die  deutschen  Frauen  (Vienna,  1882);  which 
may  be  read  in  connection  with  his  Altnordisches  Leben  (Berlin,  1856). 
To  supplement  Weinhold's  works  for  the  more  general  culture-history 
of  woman  in  the  German  family  may  be  consulted  Dahn,  "Das  Weib  in 
altgerm.  Recht  und  Leben,"  in  his  Bausteine,  VI  (Berlin,  1884);  RuU- 


Wife-Purchase  Yields  to  Marriage       255 

koetter,  Legal  Position  of  Women  among  the  Ancient  Germans  (Chi- 
cago, 1900);  Strack,  Aus  dem  deutschen  Frauenleben  (Leipzig,  1873-74); 
Scherr,  Geschichte  der  deutschen  Frauenwelt  (3d  ed.,  Leipzig,  1873); 
Bernhoft's  lively  Frauenleben  in  der  Vorzeit  (Wismar,  1893);  Backer, 
Le  droit  de  lafemme  dans  V  antiquity :  son  devoir  an  may  en  dge  (Paris, 
1880);  the  quaint  treatise  of  Grupen,  De  uxore  theotisca  (Gottingen, 
1748);  the  paper  of  Schmitt,  Die  Schlicsselgewalt  der  Ehefrau  nach 
deutschem  Recht  (Munich,  1893);  and  that  of  Reinsch,  Stellung  und 
Leben  der  deutschen  Frau  im  Mittelalter  (Berlin,  1882). 

Further  illustrations  of  domestic  and  social  life  are  afforded  by  the 
literature  of  "  left-hand  "  marriages.  Thus  Klein's  short  dissertation, 
entitled  Beitrdge  zur  Lehre  von  der  morganatischen  Ehe  (Erlangen, 
1897),  traces  the  practice  back  to  ancient  Prankish  law.  See  also  Cul- 
v[idt.iva,Morganatische  Ehe  und  Ur sprung  des  Feudalismus  (Strassburg, 
1880) ;  Zetzkius,  De  matrimonio  ad  morganaticam  contracto,  vulgo :  von 
Vermdhlung  zur  linken  Hand  (Regiomonti,  1692);  the  anonymous 
Geschichte  morganatischer  und  legitimirter  Flirsten-  und  Grafen-Ehen 
in  Deutschland  (Halle,  1874),  which  gives  a  chronological  account,  cen- 
tury by  century,  of  particular  "  left-hand  "  marriages;  and  the  disserta- 
tions of  Linckens,  Riccius,  and  Holtzl  von  Sternstein. 

Besides  the  controversial  literature  relating  to  the  so-called  droit 
de  seigneur  in  feudal  times,  already  cited  in  Bibliographical  Note  II, 
there  has  been  collected  a  mass  of  custom  and  folk-lore  concerning 
the  alleged  traces  of  wife-purchase  and  wife-capture,  and  similar 
matters,  much  of  which  will  carry  the  reader  beyond  the  period  of  the 
present  chapter,  but  which  may  serve  to  complete  the  picture  of 
medieval  private  life.  In  this  connection  may  be  noted  Wackernagel, 
"  Familienrecht  und  Familienleben  der  alten  Germanen,"  in  Sild- 
deutsches  Taschenbuch,  184:6  (257  ff.);  Schincke,  "  Hochzeitsgebrauche 
der  Germanen,"  in  Ersch  und  Gruber's  Encyklopddie,  II.  Sect.,  T.  9 
(166  ff.);  Leber,  "  Des  coutumes  et  usages  anciens  relatifs  aux  mariages," 
in  his  Collection  des  meilleurs  dissertations,  II  (Paris,  1838);  Freybe, 
Altdeutsches  Frauenlob  (Leipzig,  1873);  Schiitz,  Lobschrift  auf  die 
Weiber  der  alten  Deutschen  (Hamburg,  1776);  Schulenburg,  Die  Spuren 
des  Brautraubes,  Brautkaufes  und  dhnlicher  Verhdltnisse  in  den 
franzosischen  Epen  des  Mittelalters  (Rostock,  1894:);  Spirgatis,  "Ver- 
lobung  und  Vermahlung  im  altfranzosischen  volkstumlichen  Epos,"  in 
Wissenschaftliche  Beitrdge  zum  Jahresberichte  des  Leibniz-Gymna- 
siums zu  Berlin,  Ostern,  1894  (Berlin,  1894);  Krabbes,  Die  Frau  im 
altfranzosischen  Karlsepos  (Marburg,  1884);  Biicher,  Die  Frauenfrage 
im  Mittelalter  (Tubingen,  1882);  Homeyer,  Ueber  die  Heimath  nach 
altdeutschem  Recht,  insbesondere  uber  das  Hantgemal  (Berlin,  1852); 
M^ril,  "  Des  formes  du  mariage  et  des  usages  populaires  qui  s'y  rat- 
tachaient  surtout  en  France  pendant  le  moyen  age,"  in  lEtude  sur 


256  Matrimonial  Institutions 

quelques  points  d'arcMologie  (Paris  and  Leipzig,  1862);  B^renger- 
Ferraud,  "Mariage  et  prog^niture,"  in  his  Superstitions  et  survivances, 
II  (Paris,  1896);  and  especially  Beauchet's  able  monograph,  ^tude 
historique  sur  les  formes  de  la  c4Ubration  du  mariage  dans  I  'ancien 
droit  fran<;ais  (Paris,  1883);  Gengler,  De  morgengaba  secundum  leges 
antiquissimas  germanorum  (Bamberg,  1843);  Spangenberg,  Exercitatio 
antiqua  doni  germanorum  matutini,  quod  vulgo  morgengaham  appel- 
lant (Gottingen,  1767);  Napiersky,  Die  3Iorgengabe  des  rigischen 
Rechts  (Dorpat,  1842);  Golz,  De  morgengaba  germanorum  (Halle,  ca. 
1860);  Fischel,  De  conjugum  jure  germanico  debitis  (Berlin,  n,  d.). 
Similar  observations  have  been  made  for  other  parts  of  Europe.  See, 
for  example,  Poggi,  Usi  nuziali  nel  centio  delta  Sardegna  (Sassari, 
1894);  Murra,  Usi  e  costumi  nuziali  de  Sardegna:  for  the  Nozze  de 
Cian-Sappa-Flandinet  (Bergamo,  1894);  Salmone-Marino,  Come  se  pre- 
pari  la  sposa;  uso  nuziale  dei  contadini  di  Sicilia  (Palermo,  1890); 
Pitre,  Usi  nuziali  del  popolo  Siciliano  (Palermo,  1878);  idem,  Usi 
natalizi,  nuziali  e  funebri  del  popolo  Siciliano  (Palermo,  1879);  Frati, 
Costumanze  e  pompe  nuziali  bolognesi  nel  medio  evo:  for  the 
Nozze  Cian-Sappa-Flandinet  (Bergamo,  1894);  Reinsberg-Diiringsfeld, 
"Lieben  und  Freien  in  Piemont,"  in  Illustrirte  Frauenzeitung,  June 
7, 1875  (Berlin,  1875);  Sakellarios,  Die  Sitten  und  Gebrduche  der  Hoch- 
zeit  bei  den  Neugriechen  verglichen  mit  denen  der  alten  Griechen 
(Halle,  1880);  Gubernatis, /Storia  comparata  degli  usi  nuziali  in  Italia 
e  presso  gli  altri  popoli  Indo-Europei  (2d  ed.,  Milan,  1878);  and 
Gennari,  Degli  usi  de  Padovani  de'  tempi  di  mezzo  ne'  loro  matrimonj 
(Venice,  1800). 

On  the  controversy  as  to  the  meaning  of  m,und  and  its  place  in 
the  purchase  contract,  in  connection  with  the  views  of  Sohm,  Dahn, 
Brunner,  Lehmann,  Schroeder,  and  others,  see  Waitz,  "Ueber  die 
Bedeutung  des  Mundium  im  deutschen  Recht,"  in  Sitzungsberichte  der 
preuss.  Akad.,  1886 ;  and  Kohler,  "  Die  Ehe  mit  und  ohne  Mundium," 
in  ZVR.,  VI.  This  question,  as  well  as  other  matters,  is  also  treated 
by  Dargun,  Mutterrecht  und  Raubehe  (Breslau,  1883);  Kraut,  Vor- 
mundschaft  (Gottingen,  1835-59);  and  by  Rive  in  his  excellent  Vor- 
mundschaft  im  Rechte  der  Germanen  (Braunschweig,  1862).  Scheurl's 
Das  gemeine  deutsche  Eherecht  (Erlangen,  1882),  though  relating 
mainly  to  a  later  period,  is  of  use  for  this  chapter;  as  are  also  Konigs- 
warter,  Histoire  de  I  'organisation  de  la  famille  en  France  (Paris, 
1851);  and  Laboulaye's  very  rare  book,  Condition  civile  et  politique  des 
femmes  (1843);  Hofmann's  interesting  monograph,  Ueber  den  Verio- 
bungs-  und  Tratiring  (Vienna,  1870);  Junius,  De  annulo  romanorum 
sponsalitio  (Leipzig);  and  Miiller,  De  annulo  pronubo,  vulgo  vom 
Jaworts-  oder  Trauring,  de  modo  computationis  graduum,  de  osculo 
sancto  (Jena,  1734). 


Wife-Purchase  Yields  to  Marriage       257 

The  strong  tendency  of  Roman  legislation  of  the  lower  (Christian) 
empire  to  re-establish  the  family  authority  and  place  the  wife  in  sub- 
jection is  ably  discussed  by  Meynial,  "  Le  mariage  apr^s  les  invasions," 
in  Nouv.  rev.  hist,  de  droit,  XX,  514-31,  737-62;  XXI,  117-48  (Paris, 
1896-97);  with  this  may  be  read  Zoepfl,  De  tutela  mulierum  germanic. 
(Heidelberg,  1828);  and  Stobbe,  "Die  Aufhebung  der  vaterlichen 
Gewalt  nach  dem  Recht  des  Mittelalters,"  in  his  Beitrdge  (Braun- 
schweig, 1865).  Koehne  has  investigated  "  Die  geschlechtsverbindung 
der  Unfreien  im  franzosischen  Recht,"  in  Gierke's  Untersuchungen, 
XXII  (Breslau,  1888);  and  the  matrimonial  relations  of  the  servile 
classes  are  also  treated  by  Jastrow,  Zur  strafrechtlichen  Stellung  der 
Sklaven  bei  Deutschen  und  Angelsachsen,  ibid.,  II  (Breslau,  1878); 
Luchaire,  Manuel  des  institutions  frangaises,  203,  295,  301-3  (Paris, 
1892);  Rambaud,  Histoire  de  la  civilisation  franqaise,  I,  102, 154,  125, 
passim  (Paris,  1898);  Mone,  Bader,  and  Dam  backer,  "Eherecht  der 
Horigen  im  13.-16.  Jahrhunderte,"  Zeitschrift  fur  Geschichte  des 
Oberrheins,  VII,  2  (1856);  and  in  a  paper  "Von  Loslassung  der  unter- 
thanigen  Weibspersonen  in  der  Oberlausitz  zum  Verheurathen,"  in 
Arbeiten  einer  Gesellschaft  in  der  Oberlausitz,  II,  118  ff.  (1750). 

For  Anglo-Saxon  marriage  the  best  monograph  is  Young's  "Anglo- 
Saxon  Family  Law,"  in  Essays  (Boston,  1876).  Very  good  papers  also 
are  Amira's  Erbenfolge  und  Verwandtschafts-Gliederung  nach  den  alt- 
niederdeutschen  Rechten  (Munich,  1874);  and  Ashworth,  Das  Wit- 
thum  (Dower)  im  englischen  Recht  (Frankfort,  1898).  Opet,  "Die 
erbrechtliche  Stellung  der  Weiber  in  der  Zeit  der  Volksrechte,"  in 
Gierke's  Untersuchungen,  XXV  (Breslau,  1888),  strongly  combats  the 
commonly  accepted  theory  that  the  Anglo-Saxon  woman  was  neglected 
in  the  law  of  inheritance;  in  this  agreeing  with  Turner,  History  of  the 
Manners,  Landed  Property,  <S:c.,  of  the  Anglo-Saxons  (1805);  and 
criticising  Glasson,  Droit  de  succession  (Paris,  1886),  which  may  be 
read  with  his  La  famille  et  la  propriM6  chez  les  Germains  (Orleans, 
1885).  Henry  Adams  in  Historical  Essays  (New  York,  1891)  likewise 
takes  a  very  favorable  view  of  the  legal  condition  of  the  early  German 
married  woman.  Roeder,  Die  Familie  bei  den  Angelsachsen  (Halle, 
1899),  has  made  good  use  of  literary  sources.  Pollock  and  Maitland, 
History  of  English  Law  (Cambridge,  1895),  give  a  clear  and  concise 
sketch  of  old  English  matrimonial  custom ;  and  there  is  an  excellent 
article  by  Florence  BuckstaflF  in  the  Armals  of  the  American  Academy, 
IV,  on  "Married  Woman's  Property  in  Anglo-Saxon  and  Anglo-Norman 
Law"  (Philadelphia,  1894).  Of  service  also  are  Wright,  History  of 
Domestic  Manners  and  Sentiments  in  England  during  the  Middle 
Ages  (London,  1862);  Thrupp,  The  Anglo-Saxon  Home  (London,  1862); 
Esmein's  edition  of  Gide,  Etude  sur  la  condition  privie  de  la  femme 
(Paris,  1885);  Lingard,  History  and  Antiquities  of  the  Anglo-Saxon 


258  Matbimonial  Institutions 

Church  (London,  1845 ;  2d  ed.,  London,  n.  d.);  Phillips,  Oeschichte  des 
angelscichsischen  Rechts  (Gottingen,  1825);  idem,  Reichs-  und  Rechts- 
geschichte  seit  derAnkicnft  der  Normannen  (Berlin,  1827-28);  Hodgetts, 
Older  England  (London,  1884);  Jeaffreson,  Brides  and  Bridals  (London, 
1872);  and  Glasson,  "La  famille,"  in  his  Histoire  du  droit  et  des  insti- 
tutions de  VAngleterre,  I.  For  further  illustration  of  matrimonial  law 
and  custom  read  Dezert,  Les  unions  irr4guli^res  en  Navarre  (Caen, 
1892);  and  Hanauer,  "Coutumes  matrimoniales  au  moyen  age,"  in 
Mimoires  de  I  'acadimie  de  Stanislas  (Nancy,  1892).] 

I.       THE    PRIMITIVE    REAL    CONTRACT    OF    SALE    AND    ITS 
MODIFICATIONS 

It  is  not  improbable,  as  already  explained,  that  wife- 
capture  may  have  existed  among  our  ancestors,'  though  some 
of  the  evidence  for  its  survival  collected  from  the  folk-laws 
by  Dargun  and  others  may  perhaps  more  rationally  be 
regarded  merely  as  proof  of  the  brutality  and  lawlessness  inci- 
dent to  the  transitional  period  of  the  "barbarian  invasion."^ 
The  testimony  of  the  law-books,  however,  points  more  clearly 
to  the  former  existence  of  wife-purchase.  With  the  Old 
English,  as  well  as  among  the  other  Teutonic  peoples,  at  the 
dawn  of  history  marriage  was  a  private  transaction,  taking 
the  form  of  a  sale  of  the  bride  by  the  father  or  other  legal 
guardian  to  the  bridegroom.  The  procedure  consisted  of 
two  parts.     First    was   the  beweddung,  or  betrothal;   and 

1  Beunnee,  Rechtsgeschichte,  I,  72,  73,  and  the  sources  there  cited.  The  former 
existence  of  wife-capture  among  the  Germans  is  also  held  by  Siegel,  Rechtsge- 
schichte, 450;  Heuslee,  Institutionen,  II,  280;  Schulenbueg,  Die  Spuren  des  Braut' 
raubes,  10  ff. :  BeenhOft,  Frauenleben,  8  ff. ;  Lampeecht,  Deutsche  Geschichte,  97 
S.,  107  ff. ;  Sehling  Unterscheidung  der  VerlObnisse,  29;  Opet,  Die  erbrechtliche  Stel- 
IvAig  der  Weiber,  16  ff. ;  Colbeeg,  Ueber  das  Ehchinderniss  der  EntfUhrung  (Leipzig, 
1869),  25. 

2  Daegun,  Mutterrecht  und  Raubehe,  111-25,  critically  examines  these  passages. 
The  fact  that  a  marriage  effected  by  rape  or  abduction  is  often  treated  as  valid,  even 
when  the  purchase  price  is  not  paid,  is  especially  urged  as  evidence  of  the  survival 
of  customary  wife-capture.  Thus  in  ^thelbeeht,  82,  83;  ^lf.,  8;  iETHELEED,  VI, 
26,  39 :  ScHMiD,  Gesetze,  9,  75,  231,  301,  a  penalty  is  exacted  in  such  cases,  though  the 
marriage  appears  to  be  valid.  But  is  it  not  simpler  to  explain  this  on  grounds  still 
familiar  to  all  1  The  suggestion  of  the  text  seems  to  be  sustained  by  the  materials 
collected  by  Weinhold,  Deutsche  Frauen,  I,  308-15.  Cf.  Jeaffeeson,  Brides  and 
Bridals,  1, 12-31. 


Wife-Purchase  Yields  to  Marriage       259 

second,  the  gifta,  or  actual  tradition  of  the  bride  at  the  nup- 
tials.' The  beweddung  was  a  "real  contract  of  sale,"^  essen- 
tial to  which  was  one-sided  performance;  that  is,  payment 
by  the  bridegroom  of  the  weotuma  or  Witthum,  the  price  of 
the  bride.'  In  ancient  times  the  person  of  the  woman  was 
doubtless  the  object  of  purchase;  and  within  the  historical 
period  woman,  among  most  Teutonic  peoples,  remained  in 
perpetual  tutelage.*  When  the  guardianship  of  the  father  or 
other  male  relative,  as  representative  of  the  clan-group  or 
Sippe,  ended,  that  of  the  husband  began.  But,  however  hard 
may  have  been  the  lot  of  the  married  woman,  manifestly  her 

1  Beweddunge  is  the  Anglo-Saxon  term,  and  it  is  so  used  in  the  old  English  f ormn- 
lary  of  the  tenth  century :  Schmid,  Gesetze,  Anhang,  VI,  390.  It  means  the  act  of 
"contracting"  or  "pledging,"  associated  with  the  verb  betceddian,  "to  contract": 
Schmid,  535,  536.  It  has  the  same  origin  as  the  modern  "wed,"  "  wedding,"  etc.  On 
the  beiveddung  see  Siegel,  Deutsche  Rechtsf/eschichte,  450  ff. 

2  In  early  German  law  the  "real  contract"  is  the  only  contract  recognized.  There 
is  no  contract  by  mere  convention,  no  "  consensual  "  contract.  Originally  two-sided 
fulfilment  was  required.  Thus,  according  to  Sohm,  EheschUessung,  24  ff.,  in  case  of 
betrothal,  payment  of  the  price  and  tradition  of  the  bride  went  hand  in  hand.  Later 
one-sided  performance,  or  even  a  formal  act,  was  deemed  suflBcient,  and  through  it 
the  title  was  actually  transferred  ;  the  purchaser  thus  acquiring  the  "  negative  "  as 
opposed  to  the  "positive"  rights  of  property  —  the  power  to  use  and  enjoy.  Cf. 
Sabicht,  Altdeutsche  Verlobung,  6,7;  Loening,  Geschichte  des  deutschen  Kirchen- 
rechts,  II,  577-79;  Young,  in  Essays,  167;  Lehmann,  Verlobung  und  Hochzeit,!!; 
Feiedbeeg,  Verlobung  und  Trauung,  7,8;  Stobbe,  Reuerechtund  Vertragschlussnach 
alterem  deutschem  Recht  (Leipzig,  1876). 

3  Anglo-Saxon  weotuma:  ^Elfeed,  Ecc.  Laws,  12,  29:  Schmid,  Gesetze,  58,  62. 
Scheoedee  uses  the  term  Muntschatz,  which,  however,  is  only  found  in  Friesic  law : 
SOHM,  Eheschliessung,  33,  note.  Some  form  of  weotuma  appears  in  many  dialects: 
Old  German  loidemo,  giving  rise  to  Witthum;  Longobardian  meta ;  Burgundian  witte- 
mon;  'FT\Qs\cwetma{ioethma,%oeetma);  Alamannian  w idem. ;  Scheoedee Gtt<errec/i<, 
I,  46,  47,  24;  Schmid,  op.  cit.,  675;  Geimm,  Rechtsalterthiimer,  422-24;  Young,  in 
Essays,  165;  Weinhold,  Deutsche  Frauen,  I,  320,  note,  336,  passim;  Scheoedee, 
Rechtsgeschichte,  291,  note,  161.  Cf.  Eckhaedt,  "  Das  Witthum,"  in  Zeitsch.  fUr 
deutsches  Recht,  X,  437  ff. ;  Hellwald,  Die  mensch.  Familie,  315,  316;  Smith,  La 
famille  chez  les  Burgondes,  5  ff. 

4  On  the  tutelage  of  woman  in  early  Germanic  law  see  Geimm,  Rechtsalterthii- 
mer, 447  ff.,  465 ;  Sohm,  Eheschliessung,  22,  50  ff. ;  Weinhold,  Deutsche  Frauen,  1, 193 
ff. ;  II,  27  ;  Gide,  6tude  sur  la  cond.  priv6e  de  lafemme,  280  ff.,  339;  EiVE,  Vormund- 
schaft,  I,  218  ff. ;  Keaut,  Vormundschaft,  I,  171-86 ;  Lbbee,  Des  coutumes,  22  ff . ; 
REmacn,  Stellung  und  Leben  der  deutschen  Frau,  iS.;  Habicht,  Altd.  Verlobung, 
8  ff.,  68;  Feiedbeeg,  Eheschliessung,  17  ff.,  passim;  Scheoedee,  Gilterrecht,  1, 1  ff.; 
idem,  Rechtsgeschichte, 6iS., passim;  Brvs'se^,  Rechtsgeschichte,  I,15,&9  ft". ;  Daegun, 
Mutterrecht  und  Raubehe,  23  ff. ;  Kohlee,  "  Die  Ehe  mitund  ohne  Mundium,"  ZVR., 
VI,321ff. ;  Waitz,  in  Sitzungsherichte  der  preuss.  ^fcadcj/ue,  1886, 375  ff. ;  Buckstaff, 
in  Annals  of  Am.  Acad.,  IV,  233  11. ;  Stobbe,  "  Die  Aufhebung  der  vaterlichen  Gewalt 


i 


260  Matrimonial  Institutions 

condition  was  very  different  from  that  of  a  chattel.  This  fact 
is  not  wholly  inconsistent  with  wife-purchase ;  for,  as  already 
seen,  a  certain  liberty,  even  of  choice,  may  be  enjoyed  by 
the  woman  where  she  is  legally  the  object  of  sale.  It  has 
given  rise  to  a  theory  of  the  betrothal  which  it  is  thought 
the  records  sustain.  The  weotiima,  it  is  contended,  must  be 
looked  upon  as  the  price  of  the  mund,  or  protectorship  over 
the  woman,  which  is  transferred  from  the  father  or  legal  guard- 
ian to  the  husband.  This  is  the  view  now  perhaps  most  gen- 
erally accepted,  but  it  has  by  no  means  gone  unchallenged.* 

uach  dem  Recht  des  Mittelalters;"  in  Beitrage,  1-24,  reviewing  and  criticising 
Keaut;  Zoepfl,  (R.)i  De  tutela  mulierum  germanic.  (Heidelberg',  1828);  Emming- 
HAcs,  De  praecipuis  germ.  fern.  (Jena,  1756) ;  and  Zoepfl  (B..),  Deutsche  Rechtsge- 
schichte,  III,  1-4.  Young,  "  Anglo-Saxon  Family  Law,"  Essays,  148  fE.,  denies  that 
patrta  potestas  existed  in  German  law;  and  a  similar  view  is  taken  by  Adams,  Politi- 
cal Essays,  31  ff. ;  but  Heuslee,  Institutionen,  II,  275,  takes  the  opposite  view.  Cf. 
Smith,  La  famille  chez  les  Burgondes,  13  ff.  Fickee,  Untersuchungen  zur  Rechts- 
geschichte,  111,401  ff.,  insists  that  the  sex-tntelsLge  {Geschlechtsvormundschaft)  did 
not  exist  under  Frank  law. 

1  That  the  betrothal  is  a  contract  relative  to  the  mund  is  stoutly  maintained  by 
Dahn,  Da^  Weib  in  altgerm.  Recht  und  Leben,  4  ff.,  who  absolutely  rejects  wife- 
purchase,  declaring  such  an  idea  to  be  "abominable  and  impossible"  ("abscheulich 
und  unmOglich").  This  theory  is  also  held  by  Kraut,  Vormundschaft  I,  171; 
Scheoedee,  GUterrecht,l,2,1  S..,  38,  79;  yet  Scheoedee,  Rechtsgeschichte,&?>,^\S.., 
regards  the  German  marriage  as  in  form  a  purchase  of  the  bride.  Rive,  Vormund- 
schaft, I,  258  ff.,  passim,  denies  that  the  betrothal  has  any  relation  to  the  mund,  and 
rejects  entirely  the  view  that  the  sale-marriage  ever  existed  among  the  Germans. 
Habicht,  Altdeutsche  Verlobung,  8  ff.,  12,  admits  that  originally  the  mund  was  a 
"property  right"  and  the  wife  a  "  thing,"  though  in  the  earliest  written  sources  she 
appears  as  Rechtssubject.  Sohm,  Eheschliessung,  22,  regards  the  Witthum  as  the 
price  of  the  mund;  but  in  his  Trauung  und  Verlobung,  15,  16,  he  drops  this  view  and 
declares  the  betrothal  to  be  a  contract  to  "  give  the  bride  in  marriage,"  or,  more 
directly,  a  "  Kauf  der  Jungfrau."  Feiedbeeg,  Eheschliessung,  17, 18,  appears  to  hold 
that  it  was  the  mund  which  was  conveyed;  but  elsewhere  he  seems  to  favor  the 
opposite  view  for  the  early  period.  See  his  Verlobung  und  Trauung,  7  ff. ;  Lehrbuch, 
339;  and  Zur  Geschichte,  362  ff.  Pollock  and  Maitland,  Hist,  of  Erig.  Law,  II,  362, 
declare  that  "  whatever  guesses  we  may  make  about  a  remoter  age,  the  '  bride-sale,' 
of  which  Tacitus  had  heard,  was  evidently  no  sale  of  a  chattel.  It  was  very  differ- 
ent from  the  sale  of  a  slave  girl;  it  was  a  sale  of  the  mund,  the  protectorship  over 
the  woman."  Gide,  &tude  sur  la  cond.privSe  de  lafemme,  196-215, 335  ff. ;  and  Heney 
Adams,  Historical  Essays,  31,  are  decidedly  of  the  same  opinion.  Buckstaff,  in 
Annals  of  Am.  Acad.,  IV,  234,  doubts  whether  the  German  woman  was  ever  looked 
upon  as  a  chattel ;  and  Opet,  "  Die  erbrechtliche  Stellung  der  Weiber  in  der  Zeit  des 
Volksrechts,"  in  Gierke's  Untersuchungen,  XXV,  takes  a  very  favorable  view  of 
■woman's  right  of  inheritance. 

On  the  other  hand,  the  betrothal  is  regarded  as  originally  an  actual  sale  of  the 
bride  by  Glasson,  Hist,  du  droit  et  des  inst.  de  V Angleterre,  I,  116,  117;  Geosse,  Die 
Formen  der  Familie,  223,  234;  Siegel,  Rechtsgeschichte,  450-52;  Weinhold,  Deutsche 


Wife-Purchase  Yields  to  Marriage       261 

Ethically  and  historically,  as  suggested  in  the  preceding 
chapter,  the  rise  of  a  legal  distinction  between  the  purchase 
of  property  in  the  wife  and  the  acquirement  of  authority 
over  her  is  highly  important.  But,  practically,  when  the 
powers  of  the  husband  are  so  great  as  they  were  among  our 
ancestors,  there  can  be  little  difiPerence  in  popular  concep- 
tion between  possession  of  the  mimd  and  ownership  of  the 
woman. ^  As  a  matter  of  fact,  the  old  English  laws  speak 
bluntly  of  "buying  a  maid;"^  and  in  Germany  "to  buy  a 
wife"  vv^as  a  familiar  phrase  for  marriage  throughout  the 
Middle  Ages.^ 

Whatever  its  essential  character,  there  is  abundant  evi- 
dence of  the  widespread  existence  of  sale-marriage  among 

Frauen,  1, 320 ;  Heusler,  Institutionen,  II,  279  ff . ;  Loening,  Geschichte  des  deutschen 
Kirchenrechts,ll,!il9i;  Hofmann,  Ueberden  Verlohungs-und  rrttwrint;,  849, 850 ;  Lebee, 
Des  cautumes,  22  £E. ;  Lampeecht,  Deutsche  Geschichte,  I,  104, 105 ;  Sehling,  Unter- 
scheidung  der  VerlObnisse,  32,33;  Geimm,  Rechtsalterthiimer,  420  if. ;  Davodd-Oghlod, 
Legislation  des  anciens  Germains,  I,  xl-xli;  Hellwald,  Die  mensch.  Familie 
(apparently),  315-18;  Daegun,  Mutterrecht  und  Raubehe,  24  ff. ;  and  especially 
Beonnee,  Rechtsgeschichte,  I,  74  ff.  Lehmann,  Verlobung  und  Hochzeit,  7  ff.,  78,  79, 
finds  fainter  traces  of  the  sale-marriage  among  the  Scandinavians  than  among  the 
North  Germans.  Kohlee,  "  Die  Ehe  mit  und  ohne  Mundium,"  ZVB.,  VI,  321  ff., 
holds  that  marriage  without  viund  on  the  part  of  the  husband  is  the  marriage  of 
mother-right  as  opposed  to  the  later  Paternitdtsrecht,  See  also  Kohlee,  in  ZVR., 
Ill,  354;  and  Waitz,  "  Ueber  die  Bedeutung  des  Mundium  im  deutschen  Recht," 
Sitzungsberichte  der  preuss.  Akad.,  1886,  375  ff.,  for  a  discussion  of  the  meaning  and 
content  of  mund.  In  general,  cf.  KOnigswartee,  Hist,  de  V  organisation  de  la  familie, 
121  ff. ;  Laboulaye,  Condition  desfemm.es,  112  ff. ;  Steack,  Aus  dem  deutschen  Fami- 
lienleben,  1, 17  ff. ;  Beadchet,  Mariage  dans  le  droit  islandais,  3  ff.,  12  ff. 

1  Habicht,  Altdeutsche  Verlobung,  9,  note,  68,  insists  that  there  is  no  practical 
difference  between  the  sale  of  the  Vormundschaft,  or  protection,  and  the  sale  of  the 
bride.  See  Ficker,  Untersuchungen  zur  Rechtsgeschichte,  III,  393-419,  who  rejects 
the  view  that  marriage  has  the  same  origin  and  character  among  all  the  German 
peoples. 

2^THELB.,  77:  ScHMiD,  Gesetze,  8,  9.  Liebermann,  7,  translates:  "  Wenn  je- 
mand  eine  Jungfrau  zur  Ehe  kauft."  Another  provision  of  this  code  reads:  "If  a 
free  man  lies  with  a  free  man's  wife,  let  him  buy  her  with  her  wergeld,  and  procure 
with  his  own  property  another  woman  and  bring  her  home  to  him  (the  wronged 
husband)":  ^theleed,  31:  Schmid,  4,  5.  Cf.  Liebermann'b  ed.,  5.  See  Roeder, 
Die  Familie  bei  den  Angelsachsen,  15  ff.,  24  ff. 

sBeunnee,  Rechtsgeschichte,  I,  74:  "Wife-purchase  is  yet  known  to  the  earlier 
East  Frisian  sources,  and  it  was  still  practiced  in  Denmark  in  the  fifteenth  century. 
"  Und  wie  im  Mittelalter  die  Redensart  eine  Frau  zu  kaufon  vielfach  verbreitet  war, 
so  bezeichnet  in  HoUand  der  Volksmund  noch  jetzt  die  Braut  als  'verkocht'  (ver- 
kauft)." 


262  Matrimonial  Institutions 


the  Teutonic  nations.  Tacitus,  who  was  struck  by  a  custom 
so  much  at  variance  with  the  Roman  practice  of  his  day,  has 
given  in  the  eighteenth  chapter  of  the  Oermania  the  earliest 
description  of  a  heweddung.  "The  wife,"  he  says,  "does  not 
offer  a  dos  to  the  husband,  but  the  husband  offers  one  to  the 
wife.  Parents  and  relatives  are  present ;  they  approve  the 
gifts,  not  seeking  those  trifles  which  are  pleasing  to  women, 
nor  those  with  which  a  newly  wedded  bride  is  adorned ;  but 
oxen,  a  bridled  horse,  and  a  shield  with  sword  and  spear. 
For  these  gifts  the  wife  is  obtained,  and  she,  in  turn,  brings 
something  of  arms  to  her  husband.  These  they  regard  as 
the  highest  bond,  the  most  mysterious  sacra,  the  gods  of 
marriage."'  In  this  passage  the  essential  character  of  the 
weotuma,  that  is  the  gifts,  is  clearly  recognized ;  and  though 
the  historian  represents  it  as  being  paid  to  the  bride,  it  is 
pi-obable  that  in  this  particular  he  is  mistaken,  and  that,  in 
accordance  with  the  early  practice,  it  was  really  paid  to  the 
guardian,^  for  it  is  very  unlikely  that  the  stage  of  the  dower 
had  already  been  reached. 

In  the  earliest  English  codes  the  contract  is  found  in  its 
rudest  form.  Besides  weotuma,  various  other  terms  appear 
for  the  bride-money.     Such  are  gyft,  feoh,  pretium,  and 

1 "  Dotem  non  uxor  marito,  sed  nxori  maritus  offert.  Intersunt  parentes  ac  pro- 
pinqui ;  probant  munera,  non  ad  delicias  muliebres  quaesita,  nee  quibus  nova  nupta 
comatur,  sed  boves  et  frenatum  equum  et  scutum  cum  f ramea  gladioque.  In  haec 
munera  uxor  accipitur,  atque  invicem  ipsa  armorum  aliquid  viro  affert.  Hoc  maxi- 
mum vinculum,  haec  arcana  sacra,  hos  conjugales  deos  arbitrantur." — Tacitus, 
Germania,  c.  18. 

2SCHEOEDEE,  Guterrecht,  I,  24 ff.,  82,  83,  has  shown  that  this  is  probable;  and 
such  is  the  view  of  Geimm,  RechtsalL,  423,  424.  Zoepfl,  Deutsche  Rechtsgeschichte, 
III,  4,  believes  Tacitus,  "  vermengt  unverkennbar  die  verschiedenen  Gaben,  welch© 
nach  den  Volksrechten  des  folgenden  Zeitraumes  unter  der  Bezeichnung  als  pretium 
und  Morgengabe  hervortreten,  wovon  die  eine  dem  Vater  oder  Vormund  der  Frau, 
und  die  andere  dieser  selbst  gebuhrte;"  and  the  arms  given  by  the  bride  to  the 
bridegroom  he  identifies  with  the  later  well-known  ceremony  of  "  girding  "  the  youth 
on  reaching  majority.  Cf.  on  this  passage  also  Heuslee,  Institutionen,  II,  277; 
Thudicum,  Der  altdeutsche  Staat,  148,186;  Laboul aye,  Cond.  desfemmes,  113;  Siegel, 
Deutsche  Rechtsgeschichte,  452 ;  Gide,  £ltude  sur  la  cond.  privie  de  la  femme,  205  ff. ; 
Fickee,  Untersuchungen  zur  Rechtsgeschichte,  III,  416-19,  394,  believes  Tacitus  here 
describes  correctly  the  Vidumsehe,  the  marriage  in  which  the  Vidum  or  price  came 
to  the  woman  herself. 


WiFE-PUKCHASE    YiELDS    TO    MaRRIAGE  263 

pecunia  pro  puella  data}  According  to  a  provision  /  of 
^thelberht,  already  referred  to,  ''If  a  man  buy  a  maiden 
with  cattle  {ceapi)  let  the  bargain  stand,  if  it  be  without 
guile;  but  if  there  be  guile,  let  him  bring  her  home  again, 
and  let  his  property  be  restored  to  him."^  Another  law  of 
the  same  king  declares:  "If  a  man  carry  off  a  maiden  by 
force,  let  him  pay  fifty  shillings  to  the  owner,  and  afterwards 
buy  of  the  owner  the  latter's  consent  [to  the  marriage].  If 
she  be  betrothed  to  another  man  in  money  (sceat),  let  him 
make  bot  [to  this  bridegroom]  with  twenty  shillings."' 

Still,  it  will  not  be  wise  to  accept  too  literally  the  appar- 
ent statements  of  the  early  codes  relative  to  the  marriage 
relation,  for  they  are  often  brief  and  obscure,  devoid  of 
qualifying  terms,  and  must  be  construed  in  the  light  of  other 
facts.  Thus  Opet's  researches  seem  to  show  clearly  that  in 
the  historical  period  women  were  not  so  much  neglected  in 
the  ancient  law  of  inheritance  as  has  usually  been  supposed.* 

1  ScHEOEDEE,  GUterrecht,  I,  50 ;  idem,  Rechtsgeschichte,  292 ;  Sohm,  Trauung  und 
Verlobung,  15;  Laboulaye,  op.  cit.,  113. 

2^THELB.,  77:  Thoepe,  Ancient  Laws,  22,  23,  and  n.  3;  Schmid,  Gesetze,  8,  9. 
LlEBEEMANN,  7,  renders  the  first  part  of  this  passage :  "  Wenn  jemand  eine  Jungfrau 
[zur  Ehe]  kauft,  sei  sie  durch  [Braut]  Kaufgeld  [giltig]  erkauft,  falls  das  [Rechts- 
geschaft]  untragerisch  ist."  Cf.  Poeniten.  Theod.,  XVI,  29 :  Thoepe,  II,  11,  or  Poeniten. 
Theod.,  II,  xii,  §  34,  in  Wasseeschleben's  Biissordnungen,  216;  with  Confess.  Ecgb., 
§  20 :  Thoepe,  II,  147 ;  or  the  same  in  Wasseeschleben,  309.  See  also  Scheoedee, 
GUterrecht,  I,  51  n.  9. 

s^THELB.,  82, 83:  Thoepe,  I,  24,  25;  Liebeemann,  8;  cf,  Scheoedee,  op.  cit.,  51 
n.  10. 

i  Opet,  Die  erbrechtliche  Stellung  der  Weiber  in  der  Zeit  der  Volksrechte,  82  flF. 
This  monograph  may  be  compared  with  that  of  Amiea,  Erbenfolge  und  Verwandt- 
schaftsgliederung  nach  derm  altniederdeutschen  Rechte,  83,  84.  Roedee,  Die  Familie 
bei  den  Angelsachsen,  15  S.,  takes  a  conservative  position.  In  general  on  old  English 
marriage  see  Phillips,  Geschichte  des  angelsdchs.  Rechts,  129-33;  Davoud-Oghlou, 
II,  355-60;  YocNG,  in  Essays,  163  ff. ;  Feiedbeeg,  Eheschliessung,  33  ff . ;  Lingaed, 
Anglo-Saxon  Church  (2d  ed.) ,  I,  6  ff . ;  Teaill,  Social  England,  I,  215,  216 ;  Gidk,  Stude 
sur  la  cond.  priv4e  de  la  femme,  237, 196  ff. ;  Pollock  and  Maitland,  Hist,  of  Eng. 
Law,  II,  362 ff.;  Buckstaff,  in  Annals,  IV,  233;  Ludlow,  in  Diet,  of  Christ.  Ant.,  I, 
203, 143.  There  is  also  a  good  discussion  by  Glasson,  Hist,  du  droit  et  des  inst.  de 
VAngleterre,  I,  104-33;  an  account  of  the  Anglo-Saxon  bride  in  Geupbn,  De  uxore 
theotisca,  221-55;  interesting  details  in  Thkdpp,  The  Anglo-Saxon  Home,  19-76; 
WniGUT,  Hist,  of  Doms.  Manners  and  Sentiments,  53-56;  Tcrnee,  Hist,  of  Manners 
and  Landed  Property  of  Anglo-Saxons,  108,  113-15 ;  and  Jeaffeeson,  Brides  and 
Bridals,  1,  32-45,  who  gives  an  interesting  discussion  regarding  the  Anglo-Saxon 


264  Matrimonial  Institutions 


Similar  evidences  of  the  sale-marriage  are  afforded  by  the 
South  German  folk-laws.'  Among  the  Salian  Franks  the 
bride-price  appears  in  form  of  the  arrha,  to  be  described 
presently,  through  the  payment  to  the  guardian  by  the  bride- 
groom of  the  "golden  shilling  and  the  silver  penny."  In 
this  form  the  arrha  was  paid  by  the  representatives  of 
Chlodwig,  tiie  Frankish  king,  at  his  betrothal  with  Chlotilde, 
sister  and  ward  of  Gundobad,  king  of  the  Burgundians.^ 
Faint  traces  of  wife-purchase  survive  in  the  Bavarian^  and 
Alamannian  codes;*  while  in  the  lex  saxonum  marriage  is 
simply  described  as  uxor  em  emere,  or  "buying  a  wife."^  The 
sale-contract  retains  much  of  its  primitive  character,  in  spite 

woman,  as  a  chattel  subject  to  sale,  even  in  the  historical  period.  "To  these 
ancient  arrangements  for  the  transference  of  women  from  their  fathers  to  their 
matrimonial  suitors,  and  for  protecting  the  property  in  them  against  nefarious 
aggressors,"  he  declares,  "must  be  referred  the  barbarous  spirit  in  which  the  law 
still  persists  in  regarding  a  certain  class  of  atrocious  outrages  on  morality  as  mere 
infringements  of  private  right.  We  reflect  with  astonishment  on  the  conduct  of 
our  distant  progenitors,  who  legalized  traflBc  in  womankind,  but  we  persevere,  so  far 
as  law  is  concerned,  in  dealing  with  the  seducer  as  though  his  offence  were  nothing 
graver  than  a  violation  of  personal  privileges,  for  which  a  payment  of  money  to  one 
of  the  injured  persons  is  the  appropriate  penalty  "  (I,  42,  43). 

1  An  exhaustive  study  of  these  laws  is,  of  course,  not  attempted.  They  are  thor- 
oughly exploited  in  the  works  of  Sohm,  Brnnner,  Schroeder,  Friedberg,  Dargun,  and 
others. 

2  "  Legati  offerentes  solidum  et  denarium,  ut  mos  erat  Francorum,  earn  partibus 
Chlodovei  sponsant :  placitum  ad  praesens  petentes,  ut  ipsam  ad  conjugium  traderet 
Chlodoveo."  — Feedegaeius,  Greg.  Turon.  hist,  epit.,  c.  xviii:  in  Guadet  and 
Taeanne's  ed.,  IV,  172, 173;  or  in  Giesebeecht's  trans.,  II,  273-75.  Compare  Sohm, 
Eheschliessung,  32  n.  21;  Scheoedbr,  Giiterrecht,  I,  55  n.  3,  and  authorities  cited; 
Meeil,  Des  formes,  30 ;  Lebee,  Des  Coutumes,  24 ;  Weinhold,  Deutsche  Fi-auen,  1, 323 ; 
Feiedbeeg,  Eheschliessung,  19  n.  7.  The  price  of  a  maid  is  not  fixed  in  the  lex 
salica;  but  in  c.  44  the  price  of  a  widow  is  given  (Beheend,  58) ;  and  elsewhere  the 
woman's  mund  is  fixed  at  62V4  solidi.  Fickee,  Untersuchungen,  zur  Rechtsgeschichte, 
III,  400,  401,  regards  the  arrha.  not  as  a  survival  of  the  bride-price,  but  as  a  symbol 
of  mutual  troth. 

3 Sohm,  op.  cit.,  29  n.  15;  Feiedbeeg,  Eheschliessung,  19,  Cf.,  however,  Wein- 
hold, op.  cit.,  I,  323,  who  says  that  wife-purchase  has  disappeared  from  the  Bavarian 
and  Alamannian  laws.  See  Peetz  and  Bednnee's  ed.,  Mon.  germ.  hist. :  legum.  III, 
183-496  (Leges  baiuwariorum) ,  1-182  [Leges  alamannorum) . 

*Puella  empta  appears  in  the  Pactus  alamannorum,  3,  29.  Cf.  Scheoedee, 
Giiterrecht,  1, 17  ff. ;  Weinhold,  op.  cit.,  I,  323;  Feiedbeeg,  op.  cit.,  19. 

5"Lito  regis  liceat  uxorem  emere,  ubicunqui  voluerit.  Sed  non  liceat  nllam 
foeminam  vendere."— Lea;  saxonum,  tit.  18:  Waltek,  Corpus  juris  germ.,  I,  389. 
Tit.  6  fixes  the  price  at  300  solidi :  Waltee,  I,  386. 


Wife-Purchase  Yields  to  Marriage       265 

of  ecclesiastical  influences,  in  the  West  Gothic,  Burgundian, 
and  Lombard  codes.  Among  the  West  Goths  the  betrothal 
was  almost  as  binding  as  a  marriage.  The  father  or  other 
legal  protector  might  contract  his  daughter  or  ward  against 
her  will.  If  she  disregards  such  a  contract  and  marries 
another  man,  both  bride  and  bridegroom  are  "handed  over 
to  the  power"  of  him  to  whom  she  was  betrothed  by  her 
father  or  guardian,  "and  any  relatives  abetting  the  marriage 
shall  pay  a  penalty  of  gold."  ^  The  provisions  of  the  other 
two  codes  last  mentioned  are  conceived  in  a  similar  spirit.'^ 
Moreover,  even  in  the  customs  of  the  Scandinavian  North 
forms  and  phrases  have  survived  which  seem  to  point  unmis- 
takably to  the  former  existence  of  wife-purchase.^ 

During  the  period  of  the  law-books,  both  in  England 
and  on  the  continent,  the  amount  of  the  bride-money  was 
generally  fixed  by  custom  or  by  statute.  The  price~estab- 
lished  seems  usually  to  have  equaled  the  value  of  the  mund 
or  that  of  the  wergeld,  which  depended  upon  the  rank  of  the 
woman.*    While  the  law  thus  fixed  the  amount  of  the  bride- 

iLex  wisigoth.,  lib.  iii,  tit.  i,  2:  Waltee,  Corpus  juris  germ.,  I,  466;  Ludlow, 
in  Diet.  Christ.  Ant,  I,  203.  The  bride-money  is  here  called  pretium,  elsewhere  the 
betrothal  is  styled  mercatio:  Bednnee,  Rechtsgeschichte,  I,  74  n.  23.  The  whole  of 
liber  iii,  Waltek,  I,  465-91,  relates  to  marriage  and  allied  matters. 

"2  Lex  burgundionum,  tits.  12,  34,  51,52,66,69:  Waltee,  I,  311,  320,  329,  330,  335, 
336;  for  the  Lombards,  Edictum  Rotharis,  c.  178  ff.:  Waltee,  I,  710  ff.,  especially  c. 
182,  which  contains  the  form  of  betrothal.  Compare  this  with  the  later  ritual  given 
by  Canciani,  II,  476,  summarized  by  Weinhold,  I,  341;  Ludlow,  in  Diet.  Christ. 
Ant.,  I,  203.  See  also  Liutprandi  leges,  lib.  ii,  c.  7  ft.,  88,  93,  99,  102,  106, 112, 115, 119, 
etc. :  Waltee,  I,  759  ff. 

3  Lehmann,  Verlobung  und  Hochzeit,  1  ff.,  78, 79 ;  Weinhold,  Altdeutsches  Leben, 
240.  ScHEOEDEE,  Rechtsgeschichtc,  287,  denies  that  there  are  any  sure  traces  of  wife- 
purchase  in  northern  law. 

*ScHEOEDEE,  op.  cit.,  292;  Beunnee,  Rechtsgeschichte,  75;  Weinhold,  Deutsche 
Frauen,  I,  321  ff. ;  Sohm,  Eheschliessung,  23,  24,  who  thinks  the  fixing  of  a  legal  price 
of  great  importance,  the  purchase  of  a  maid  being  thus  distinguished  from  that  of  a 
thing.  The  bride-money  is  thus  the  nominal  price  of  an  unschcitzbares  object;' it 
admits  no  bargaining ;  but  the  explanation  of  H ABicnr,  Altdeutsche  Verlobung,  12, 
13,  given  in  the  text,  is  simpler  and  more  probable.  Scheoedee,  Oiiterrecht,  1, 11  ff., 
in  connection  with  each  code,  gives  a  mass  of  details  relative  to  the  violation  of  the 
mund  by  illegal  marriage  and  the  amount  of  the  composition  in  each  case.  Cf. 
Laboulaye,  Cond.  des  femmes,  113 ;  Young,  in  Essays,  166 ;  and  ^thei^beeht,  31 : 
Thosfe,  1, 11,  where  the  wergeld  is  mentioned. 


266  Matrimonial  Institutions 

money,  doubtless  to  facilitate  an  easy  settlement  of  those 
cases  in  which  marriages  were  illegally  formed  without  pay- 
ment of  the  weofuma,  it  by  no  means  follows,  as  sometimes 
assumed,  that  its  value  was  not  ordinarily  arranged  by  pri- 
vate agreement,  as  in  the  early  period. 

At  a  very  early  day  it  became  customary — instead  of  the 
weotuma  to  pay  to  the  guardian  a  small  sum  at  the  betrothal, 
called  in  general  arrha^ — the  Hand-geld  of  the  German 
writers — accompanied  by  promises  and  sureties  for  the  pay- 
ment of  the  price  of  the  bride  at  the  gifta,  or  nuptials. 
Strictly  speaking,  the  arrha  was  neither  a  part  payment  nor 
even  a  symbolical  payment  of  the  weotuma;  it  was  an  act  by 
which  the  real  obligation  implied  by  the  contract  of  sale  was 
engendered.^  The  practice  of  paying  the  arrha  instead  of 
the  bride-money  at  the  betrothal  led  to  a  change  in  the 
character  of  the  marriage  contract.  "In  the  time  of  the 
folk-laws — from  the  sixth  to  the  ninth  century — we  see 
among  all  the  German  tribes  a  change  take  place  :  the  wit- 
thum,  that  is  the  purchase  price,  is  no  longer  paid  to  the 
guardian,  that  is  the  seller,  but  to  the  bride  herself ;  so  that 
the  right  of  the  guardian  was  practically  limited  to  the 
receipt  of  the  handgeld,  that  is  to  a  merely  formal  fulfil- 
1  ment."*  Thus,  since  the  property  of  the  wife  was  subject 
to  the  husband's  control  during  his  lifetime,  the  weotuma 

1  Latin  arrha,  arra,  or  arrhabo;  Greek  appa^oii';  Lombard  launichild,  launegild, 
perhaps  the  same  as  the  German  Lohngeld.  It  means  "  earnest  money,"  and  was 
used  by  the  Romans  in  connection  with  bargains ;  also  in  general  with  other  real 
contracts.  Cf.  Smith,  Diet.  Greek  and  Roman  Ant.,  I,  193;  Bingham,  Grig.  Ecc, 
Vll,  311 ;  SCHEOEBEB,  Rechtsgcschichte,  290,  295 ;  idem,  GUterrecht,  I,  39,  55  ff. ;  Heus- 
LEE,  Institutionen,  I,  80  fE. ;  Sohm,  Eheschliessung,  28 ;  Zoepfl,  Deutsche  Rechts- 
geschichte.  III,  8  fE.,  12-14;  Davoud-Oghlou,  II,  59  n.  3;  Ludlow,  in  Diet.  Christ. 
Ant.,  1, 142-44.  "  Subarrare  "  is  used  in  the  ritual  of  the  Greek  church  for  disposing 
in  marriage :  see  the  ritual  in  Buen,  Parish  Registers,  141, 142. 

2  Sohm,  Eheschliessung,  28-32,  maintains  this  view  against  Scheoeder,  GUter- 
recht, I,  39,40,55,  and  others,  who  regard  the  arrha  as  a  symbolical  payment  — a 
Scheinpreis  or  symboUscher  Muntschatz.  Cf,  Fsiedbebg,  Eheschliessung,  19 ;  "Zur 
Gesch.  der  Eheschliessung,"  ZKR.,  I,  364  ff. 

3 Sohm,  op.  cit.,33. 


Wife-Purchase  Yields  to  Marriage       267 

was  really  transformed  into  a  provision  for  the  widow, 
payable  only  after  death  from  the  husband's  goods.'  The 
heweddung  was  still  a  "real  contract,"  but  not  a  "contract 
of  sale."' 

In  this  second  stage,  it  has  been  thought,  was  the  form 
of  betrothal  among  the  old  English  in  the  days  of  Ine  and 
Alfred ;  but  the  evidence  is  not  entirely  conclusive.  Indeed, 
a  provision  of  Ine,  relied  upon  by  Schroeder  to  prove  that 
the  price  had  not  been  paid  at  the  betrothal,  appears  to 
show  the  opposite,  according  to  the  reading  of  Liebermann, 
"If  a  man  buy  a  woman  (as  a  wife)  and  the  gifta  or  tradition 
take  not  place,  let  him  (the  woman's  guardian)  give  the 
money  back  (to  the  bridegroom),  pay  as  much  more  as  pen- 
alty, and  recompense  the  betrothal  sureties  (byrgean)  in  as 
much  as  the  breach  of  their  pledge  is  worth." ^  Even  with 
this  reading  it  is  just  possible  that  the  money  restored  was 
the  arrJiaj  and  that  betrothal  sureties  were  required  mainly 
to  secure  damage  in  case  the  bride  were  not  actually  trans- 
ferred. A  law  of  Alfred  likewise  shows  the  practice  of 
taking  surety;  but  in  this  case  also  it  seems  uncertain 
whether  the  pledges  were  given  for  the  payment  of  the 
bride-money ;  for  damage  on  failure  to  surrender  the  bride 
as  a  maid ;  or  for  both  bride -price  and  damage  combined, 
though  the  last  hypothesis  seems  the  most  probable.  "If  a 
betrothed  woman  commit  adultery,  if  she  be  of  ceorlish 
degree,  let  a  penalty  of  sixty  shillings  be  paid  to  the  be- 
trothal sureties,  and  let  it  be  in  live-stock,  things  of  value ; 
and  in  it  let  no  (unfree)  man  be  given."  If  the  woman  be 
worth  six  hundred  or  twelve  hundred  shillings  wergeld,  the 

1  Ibid. 

^Ibid.,  34.  But  Friedbeeg,  Verlobung  und  Trauung,  8-10,  insists  on  the  long 
survival  of  the  sale-contract. 

3 Ine,  31:  Liebeemann,  Gesetze,  103.  The  phrase  "and  sio  (seo)  gyft  (gift)  forth 
ne  cume"  was  rendered  by  Schkoedee,  Giiterrecht,  1,51  n.  8,  followed  by  Schmid, 
Gesetze,  34,  35,  note,  "if  the  purchase  price  be  not  paid" — a  manifest  error.  Qf. 
Thoepe,  Ancient  Laws,  I,  123. 


268  Matrimonial  Institutions 

penalty  is  fixed  at  one  hundred  or  one  hundred  and  twenty 
shillings  respectively.'  But  another  law  of  Alfred  seems 
to  reveal  more  clearly  the  second  or  transitional  phase  in 
the  history  of  the  wedding  contract;  for  the  bride-price  is 
paid  to  the  woman.  It  provides  that  in  case  a  man  sell 
his  daughter  into  servitude,  and  the  purchaser  "allow  his 
son  to  cohabit  with  her,  let  him  (the  son)  marry  her:  and 
let  him  see  that  she  have  raiment,  and  that  which  is  the 
worth  of  her  maidhood,  that  is  the  weotuma ;  let  him  give 

her  that." ' 

The  transition  from  this  last-named  form  of  contract  to 
a  third  and  still  more  liberal  one  was  easy  and  natural. 
Already  in  the  tenth  century  the  beweddung  had  become  a 
merely  "formal  contract,"  the  wed,  wette,  Treugelobniss, 
wadium,  or  fides  facta  of  the  early  laws.^  In  this  case 
there  was  not  even  one-sided  fulfilment  through  payment  of 
the  arrha,  which  in  the  form  of  wine-money  was  merely 
promised  to  the  guardian;*  but  instead  the  agreement  or 
convention  was  accompanied  by  sureties  to  pay  the  weotuma 
to  the  bride,  and  by  a  solemn  act  which  created  the  obliga- 
tion, and  was  therefore  essential  to  the  contract.  Originally 
this  solemn  act  consisted  in  giving  and  taking  the  straw 
(festuca)  on  the  part  of  the  bride  and  bridegroom.  Instead 
of  the  straw,  other  objects  were  sometimes  employed,  such 
as  a  piece  of  cloth,  an  arrow,  a  number  of  gloves,  and  the 
like.^  The  oath  or  vow  was  also  substituted  for  the  solemn 
act;  and,  particularly  in  the  later  Middle  Ages,  the  most 

i^LFEED,  18:  LiEBEEMANN,  Gesctze,  58-61.  Cf.  Thoepe,  op.  cit.,  1,73;  Schmid, 
op.  cit.,  81,  83;  Yocng,  in  Essays,  170. 

2^LPEED,  Ecc.  Laws,  12:  Thoepe,  op,  cit,,  I,  47.  But  ^Elpeed,  op.  cit.,  29, 
seems  to  show  that  the  older  practice  of  paym«nt  to  the  father  also  existed: 
Thoepe,  I,  52. 

3  The  German  wette  and  Anglo-Saxon  wed  are  from  the  same  root  as  bewed- 
dung. 

*  SOHM,  Eheschliessung,  30,  31,  317,  note. 

^Ibid,,  34,  35;  Scheoedee,  Bechtsgeschichte,  293,  294. 


Wife-Purchase  Yields  to  Marriage       269 

popular  symbol  by  which  the  contract  was  closed  was  a 
"weakened"  form  of  the  oath,  the  Handschlag,  or  hand- 
fasting,  so  famous  in  connection  with  the  history  of  English 
"secret"  or  "irregular"  marriages,'  It  should  be  noted 
that  after  the  betrothal  assumes  the  form  of  the  wed,  the 
weotuma  ceases  to  be  of  real  importance  and  becomes  a  gift 
to  the  bride  of  little  value ;  whereas  now  the  object  of  real 
concern  in  the  convention  is  the  morgengifu,  or  morning- 
gift.^  This  was  originally  a  small  voluntary  gift  to  the  bride 
on  the  morning  following  the  nuptials ;  but  as  the  weotuma 
decreased  the  morning-gift  increased  in  importance.  It 
became  customary  to  gr^nt  them  both  in  the  same  instru- 
ment at  the  betrothal;  so,  at  length,  they  were  merged  and 
became  a  regular  legal  provision  for  the  widow.  Such  was 
the  Lombard  quarta^  and  the  Frankish  tertia;*  the  Norman 
douaire,  and  the  dos  ad  ostium  ecclesiae  of  Glanville,  the 
predecessors  of  the  modern  English  dower. ' 

This  third  phase  of  the  beweddung  may  be  clearly  dis- 
cerned in  the  English  laws  of  the  pre-Norman  period,  and 
seems  to  have  been  the  prevailing  form  after  the  beginning 
of  the  tenth  century.  The  following  formulary,  dating  per- 
haps from  the  reign  of  Eadmund  or  ^thelstan,  besides  its 
peculiar  interest  as  being   the  earliest    English  betrothal 

1  On  the  oath  and  Handschlag,  see  Sohm,  op.  cit.,  47-50;  on  hand-fasting,  Fried- 
BEEG,  Eheschliessung,  39  S. 

2  On  the  morning-gift  and  dower  see  Heuslee,  Institutionen,  II,  374-79; 
Theupp,  The  Anglo-Saxon  Home,  60;  Gundling,  De  emptione  uxorum,  dote  et  mor- 
gengaba  (Helmstedt,  1821) ;  Genglee,  Die  Morgengaba  (Bamberg,  1843) ;  Eckhaedt, 
"Das  Witthum,"  Zeitschrift  fur  deutsches  Recht,  X,  437 ff.;  Geupen,  De  uxore 
theotisca, 49-HO;  Beunnee,  "Die  frankisch-romanische  Dos,"  Berliner  Sitzungsber., 
XXIV,  545 ff.;  Siegel,  Deutsche  Rechtsgeschichte,  455-57;  Feiedbeeg,  "Zur  Ge- 
schichte,"  Z^ii!.,I,  365,  366;  Spiegatis,  Verlobung  und  Vermahlung, li;  Scheoedeb, 
Qilterrecht,  I,  84-94  Zoepfl,  Deutsche  Rechtsgeschichte,  III,  19-21. 

3  Scheoedee,  GUterrecht,  I,  84-89.  *  Ibid.,  89-94. 

5  Glanville,  Lib.  VI,  cap.  1 ;  Phillips,  Englische  Reichs-  und  Rechtsgeschichte, 
II,  381.  Compare  Schroeder, op. c»/.,  I,  89;  II,  24-67,  passim;  Young,  in  Essays,  174; 
Laboulaye,  Cond.  des  femmes,  117  ff.,  124  ff. ;  Geimm,  Rechtsalt.,  441 ;  and  especially 
the  monograph  of  Ashwoeth,  Das  Wittthum  {Dower)  im  eng.  Recht,  9  ff.,  18  ff. 


270  Matrimonial  Institutions 


ritual  extant,  is  an  excellent  example  of  the  formal  contract, 
though  some  of  its  provisions  are  not  clear: 

"1.  If  a  man  desire  to  betroth  a  maiden  or  a  widow,  and 
it  so  be  agreeable  to  her  and  her  friends,  then  it  is  right  that 
the  bridegroom,  according  to  the  law  of  God,  and  according 
to  the  customs  of  the  world,  first  promise  and  give  a  'wed' 
to  those  who  are  her  'foresprecas,'  that  he  desire  her  in  such 
wise  that  he  will  keep  her,  according  to  God's  law,  as  a 
husband  shall  his  wife:  and  let  his  friends  guarantee  that. 

"2.  After  that,  it  is  to  be  known  to  whom  the  'foster- 
laen"  belongs:  let  the  bridegroom  again  give  a  'wed'  for 
this:  and  let  his  friends  guarantee  it. 

"3.  Then,  after  that,  let  the  bridegroom  declare  what  he 
will  grant  her,  in  case  she  choose  his  will,  and  what  he  will 
grant  her,  if  she  live  longer  than  he. 

"4.  If  it  be  so  agreed,  then  it  is  right  that  she  be  entitled 
to  half  the  property,  and  to  all,  if  they  have  children  in 
common,  except  she  again  choose  a  husband.^ 

"5.  Let  him  confirm  all  that  which  he  has  promised  with 
a  'wed;'  and  let  his  friends  guarantee  that. 

"6.  If  they  then  are  agreed  in  everything,  then  let  the 
kinsmen  take  it  in  hand,  and  betroth  their  kinswoman  to 
wife,  and  to  a  righteous  life,  to  him  who  desired  her,  and 
let  him  take  possession  of  the  'bohr'*  who  has  control  of 
the  'wed.' 

1  The  meaning  of  "  foster-laen  "  is  uncertain.  Schmtt)  wrongly  identifies  it 
with  the  gyft  of  Ine,  31,  and  thinks  it  is  the  purchase  price  of  the  bride,  that  is,  the 
weotuma:  Oesetzc,  S4, 35,note.  Thorpe  regards  it  also  as  the  purchase  price  paid 
to  the  family  of  the  bride :  Aiic.  Laics,  I,  254,  note.  Scheoedee,  Guterrecht,  I,  51 
n.  13,  believes  it  to  be  a  provision  for  maintenance  of  the  children.  But  Sohm 
renders  it  Weinlcauf,  "  drink-money,"  and  this  is  probably  right.  It  is  a  form  or 
application  of  the  arrha,  which  is  not  now  paid  down,  but,  the  contract  being  for- 
mal, is  promised  to  the  guardian.  The  arrha  had  customarily  been  spent  in  treating 
the  guests:  Eheschliesswng,  30,  31,  317,  note. 

2  "  The  language  of  this  law  seems  to  indicate  that  the  legal  endowment  of  the 
woman  was  one-third  of  the  chattels,  as  in  Ine,  c.  57.  By  contract,  however,  before 
marriage,  the  husband  might  increase  this  to  one-hall."— Thoepe,  I,  255,  note. 

3 The  bohr  was  the  surety  for  fulfilment  of  the  pledges. 


Wife-Purchase  Yields  to  Marriage       271 

"7.  But  if  a  man  desire  to  lead  her  out  of  the  land,  into 
another  thane's  land,  then  it  will  be  advisable  for  her  that 
her  friends  have  an  agreement  that  no  wrong  shall  be  done 
to  her;  and  if  she  commit  a  fault,  that  they  may  be  nearest 
in  the  'bot,'  if  she  have  not  whereof  she  can  make  'bot.'"^ 

The  form  of  betrothal  here  described  is  that  of  the  wed. 
The  foster-laen,  or  wine-money,  a  substitute  for  the  arrha, 
is  not  paid  down,  but  it  is  merely  promised  to  the  guardian; 
while  the  morning-gift — "in  case  she  choose  his  will" — 
and  the  iveotuma — "if  she  live  longer  than  he" — are  the 
important  elements,  and  these  belong  to  the  bride.^ 

Such  was  the  form  of  heweddung  generally  prevailing 
among  the  Germanic  nations  about  the  time  of  the  Norman 
Conquest.  It  had  been  reached,  as  we  have  seen,  only 
through  several  successive  phases  of  development,  not  sharply 
defined,  but  overlapping  each  other.  In  the  first  stage,  fall- 
ing mainly  or  wholly  within  the  prehistoric  era,  the  betrothal 
is  a  real  contract,  according  to  which  there  is  two-sided  ful- 
filment. The  payment  of  the  price  and  the  delivery  of  the 
bride  go  hand  in  hand.''  In  the  second  stage,  existing  at 
any  rate  from  the  time  of  Tacitus  onward,  the  transaction  is 
still  in  form  a  real  contract  of  sale,  but  there  is  only  one- 
sided fulfilment.  The  purchase  price  is  paid  to  the  guardian, 
but  the  tradition  of  the  bride  is  postponed.  Next  a  solemn 
act  through  payment  of  a  nominal  sum,  or  arrha,  is  deemed 
suflScient,  the  payment  of  the  actual  price,  or  weotuma,  being 

1  Thoepe,  Anc.  Laws,  I,  255,  257,  who  classes  this  formulary  with  the  laws  of 
Eadmund.  Schmid  leaves  the  date  undetermined,  but  thinks  it  may  with  as  much 
probability  be  ascribed  to  Eadmund  or  ^thelstan  as  any  other  king:  Gesetee,  Ixv, 
and  Anhang,  VI,  391,  393.  Cf.  Pollock  and  Maitland,  Hist.  Eng.  Law,  II,  367 ;  and 
DlECKHOFF,  Kirchliche  Trauung,  683.,  who  gives  the  text  of  this  ritual. 

2  SoHM,  Eheschliessung,  155, 100  n.  60,  317.  Scheoedee,  Gilterrecht,  I,  53,  54,  96, 
reverses  the  meaning  of  these  passages;  and  holds  that  the  phrase  "in  case  she 
choose  his  will"  refers  to  the  weotuma;  and  the  phrase  "  if  she  live  longer  than  ho," 
to  the  morning-gift.  But  see  Pollock  and  Maitland,  II,  363,  who  render  the  last 
clause  by  "dower,"  and  the  first  by  "  morning-gift." 

3  Beunnee,  Bechtsgeschichte,  I,  74. 


272  Matrimonial  Institutions 

reserved  for  the  nuptials,  when,  often,  it  is  paid,  not  to  the 
guardian,  but  to  the  bride,  disclosing  to  us  the  genesis  of 
the  dower.  The  beweddung  is  still  a  real  contract,  but 
not  a  contract  of  sale.  Finally,  even  one-sided  fulfil- 
ment is  no  longer  required.  Nothing  is  paid  and  nothing 
is  transferred  at  the  betrothal,  which  now  consists  of  prom- 
ises and  sureties,  accompanied  by  a  solemn  act  which 
engendered  the  obligation.  The  real  contract  of  sale  has 
been  transformed  into  a  merely  formal  contract,  which  pro- 
vides for  future  fulfilment  on  the  part  of  both  guardian  and 
bridegroom. 

Let  us  now  turn  to  the  second  act  in  marriage,  the  gifta, 
or  actual  "giving"  of  the  bride  to  the  husband.  Here  there 
is  no  lack  of  ceremony  and  solemn  phrases.  Legally  the 
gifta  is  a  distinct  transaction  subsequent  to  the  betrothal 
in  the  order  of  time.^  Very  generally  in  German  lands 
late  autumn  or  early  winter  was  the  favorite  season  for  the 
celebration  of  marriages.  So  also,  during  the  waxing  moon, 
a  Tuesday  or  a  Thursday  was  preferred  for  the  wedding  day.^ 
As  among  the  Greeks,  Romans,  and  Hindus,^  the  nuptial  cere- 
mony appears  to  have  consisted  of  three  parts :  the  solemn 
tradition,  the  joyous  home-bringing  of  the  bride,  and  the 
festal  initiation  into  the  wedded  life  in  the  bridegroom's  house.* 

1  This  is  the  view  of  Sohm,  Trauung  und  Verlobung,  38-57 ;  EheschUessung,  89,  90, 
100,  59  ff . ;  as  opposed  to  Friedbeeg,  Verlobung  and  Trauung,  21  ff. ;  EheschUessung, 
21, 22,  who  thinks  that  the  Trauung  and  Verlobung  usually  coincided.  Cf.  Scheoedee, 
Bechtsgeschichte,  293;  and  Dieckhoff,  Kirchliche  Trauung,  67,  who  agrees  with 
Sohm. 

2  For  very  interesting  details  relating  to  the  German  Trauung  see  Weinhold, 
Deutsche  Frauen,  II,  362-413.  The  old  English  betrothal  ceremonies  are  best 
described  by  Roedee,  Die  Familie  bei  den  Angelsachsen,  15  ii'. 

3  Haas,  in  Webee's  Indische  Studien,  V,  327-29,  391-99.  Leist,  Alt-arisches  Jtts 
Gentium,  133-71,  gives  a  full  discussion.    Cf.  above,  chap,  iv,  pp.  171  ff. 

*  For  the  North  Germans,  Lehmann,  Verlobung  und  Hochzeit,  80-88 ;  Weinhold, 
Altnordisches  Leben,  243-52 ;  and  in  general,  idem,  Deutsche  Frauen,  368  ff.,  406  ff.,  399. 
The  third  part  of  the  ceremony  is  the  Bettbeschreitung,  or  bedding  of  the  newly 
married  pair.  Normally  this  talces  place  in  the  bridegroom's  house,  as  according  to 
northern  custom:  Lehmann,  85-87;  but  sometimes  it  appears  to  have  taken  place  in 
the  bride's  home  before  the  home-bringing:  Weinhold,  I,  399  ff.  Cf.  Feiedbeeg, 
EheschUessung,  22,  45,  64. 


WiFE-PUROHASE    YiELDS    TO   MaERIAGE  273 

Of  these  the  gifta,  or  tradition,  is  most  important,  and  it 
takes  place  in  the  home  of  the  bride.*  The  father  or 
guardian  by  blood  takes  the  lead  in  the  proceedings,  and  is 
thus  the  prototype  of  the  modern  priest  or  magistrate.  The 
first  act  is  the  solemn  surrender  of  the  bride  together  with 
the  symbols  of  the  husband's  power  and  protection:  the 
sword,  the  hat,  and  mantle,  or  other  objects  of  similar  sig- 
nificance. Then,  on  reception  of  the  bride,  the  bridegroom 
pays  the  weotuma,  or  delivers  the  charter  providing  for  the 
morning- gift  or  other  allowance  for  the  widow;  and,  at  the 
same  time,  makes  symbolical  assertion  of  the  power  which 
he  thus  acquires  over  the  wife:  for  example,  by  treading 
upon  her  foot — a  custom,  says  Sohm,  which  at  later  time 
finds  a  more  refined  expression  in  the  delivery  of  a  shoe  or 
slipper.^  From  this  arose  the  belief,  still  existing  in  some 
parts  of  Germany,  that  the  bride  will  rule  the  family,  if 
before  the  altar,  after  the  blessing  is  pronounced  by  the 
priest,  she  places  her  foot  upon  that  of  the  bridegroom. 
"Who  carries  the  slipper  rules." ^ 

A  point  which  requires  special  notice  is  the  relative  legal 
importance  of  the  heweddung  and  the  gifta.  "Whether  the 
marriage  begins  with  the  betrothal,  or  with  the  delivery  of 

iThe  nuptials  of  widows,  according  to  Salic  law,  were  an  exception.  These 
were,  nominally,  solemnized  in  the  malluni,  or  open  court;  but  in  practice  this 
requirement  may  not  always  have  been  observed.  The  exception  seems  to  be  an  out- 
growth of  the  original  restriction  on  second  marriage :  Tacitds,  Qermania,  c.  19 ; 
Lex  salica,  44,  de  reipus :  Beheend,  57,  58.  Cf.  Sohm,  Eheschliessung,  62-64  nn.  16, 
17,18;  ScHEOEDEE,  GUterrecht,  I,  56.  Feiedbeeg,  op.cit.,  21;  "Zur  Geschichte," 
ZKR.,  I,  366,  led  astray  by  the  statement  of  Geimm,  Bechtsalt.,  433,  that  Gemahl,  "  hus- 
band," is  derived  from  mallum,  thinks  the  nuptials  were  usually  celebrated  in  open 
court.  On  the  derivation  see  Sohm,  op.  cit,  62.  In  general  on  the  marriage  of 
widows  see  also  Habicht,  4Jid.  Verlobung,  16-23;  Weinhold,  Dewtec/ie  Frawcn,  II, 
40  ff . ;  Scheoedee,  Rechtsgeschichte,  293,  296 ;  Rive,  Vormundschaft,  I,  241 ;  Zoepfl, 
Deutsche  Rechtsgeschichte,  III,  3,  10,  11;  Weinhold,  "Reipus  und  Achasius,"  in 
Haupt's  Zeitschrift,  VII,  539  S. ;  MtJiiLENHOFF,  "  Glossary,"  in  Waitz,  Das  alte  Recht. 

2  Sohm,  op.  cit.,  59-74. 

3  Geimm,  op.  cit.,  142, 155,  156;  Weinhold,  Deutsche  Frauen,  I,  372.  On  the  gifta 
cf,  ScHMiD,  Gesetze,  630;  Feiedbeeg,  EheschUessung,  21;  Weinhold,  Altnordisches 
Leben,  243  ff. 


274  Matrimonial  Institutions 

the  bride  to  the  bridegroom,  or  with  their  physical  union, 
is  one  of  the  many  doubtful  questions."  *  According  to  the 
view  of  Sohm,  which  is  defended  with  his  usual  acuteness,  the 
betrothal  of  the  early  laws  is  not,  as  commonly  held,  a 
pactum  de  contrahendo,  a  contract  for  the  future  giving  in 
marriage,^  but  the  essential  part  of  the  marriage  itself.  It 
is  the  only  declaration  of  will,  the  only  ground  of  legiti- 
mate marriage,  which  is  not  created,  but  merely  consum- 
mated at  the  gifia.^  Those  who  are  bound  by  contract  are 
in  respect  to  third  parties  practically  husband  and  wife.* 
The  ground  of  the  husband's  title  is  the  betrothal  and  not 
the  nuptials.  Either  party  can  bring  action  in  the  courts 
for  breach  of  the  contract.  The  bridegroom  cannot  compel 
the  delivery  of  the  bride,  but  he  may  sue  for  the  recovery  of 
the  weohima  and  an  additional  fine.^  On  the  other  hand,  a 
breach  of  the  contract  by  the  bridegroom  is  punished  by 
forfeiture  of  the  weotuma,  and  possibly  also  by  a  fine.^ 
The  betrothal  created  the  negative  effects  of  marriage — the 

1  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  363.  Thus  Feiedbeeg,  op.  cit., 
21,  22,  regards  "  Verlobung,  Trauung,  und  Beilager  "  as  acts  each  of  which  is  an  ele- 
ment in  the  "joining  in  marriage" — all  three  " eheschliessende  Vorgange."  Cf. 
Sohm,  Eheschliessung,  88,  89;  Zoepfl,  Deutsche  Rechtsgeschichte,  III,  5;  Siegel, 
Deutsche  Rechtsgeschichte,  455-57  ;  Klein,  Z>as  Eheverlobniss,  130  £f.,  who  reviews  the 
whole  subject,  citing  authorities;  and  Hanauee,  Coutumes  matrimoniales,  255  ff. 

2 The  views  as  to  the  legal  "content"  of  the  betrothal  are  summarized  by 
Habicht,  Altdeutsche  Verlobung,  30.  Rive,  Vormundschaft,  I,  243,  holds  that 
betrothal  was  not  essential  to  a  legal  marriage;  while  Paedessus,  Loi  salique 
(Paris,  1843),  regards  it  as  legally  requisite  for  a  marriage,  which,  however,  actually 
began  only  with  the  tradition  of  the  bride. 

3 Sohm,  Trauungund  Verlobung,  13&-47,  passim,'  idem,  Eheschliessung,  75-106. 

*This  is  illustrated  by  the  survival  of  names  originally  connected  with  the 
betrothal,  but  now  with  marriage  itself :  the  English  wed,  wedding,  wedded  wife, 
etc. ;  the  German  Gemahl  and  Gemahlin;  the  French  6poux  and  Spouse,  etc.  Sohm, 
Eheschliessung,  78  n.  6,  56  nn.  74  and  75;  idem,  Trauungund  Fer toftMnfif,  82,  83.  But 
Habicht,  Altdeutsche  Verlobung,  65-67,  believes  this  argument  not  conclusive. 

^Poen.  Theod.,  XVI:  Thorpe,  II,  11 :  "  reddatur  ei  pecunia  quam  pro  ipsa  dedit, 
et  tertia  pars  addatur ;  "  also  in  Haddan  and  Stubbs,  Councils,  III,  201 ;  and  Was- 
seeschleben,  Bussordnungen,  216.  The  reading  in  Conf.  Ecgb,  is,  "  reddatur  ei 
pecunia,  quam  pro  ilia  dederat,  et  praeteria  tertia  pars  hereditatis." — Thoepe,  II, 
149;  Wasseeschleben,  309.    Cf.  ^Elf.,  18 :  Thoepe,  I,  73;  Young,  in  Essays,  169. 

6  Ine,  31 :  Thoepe,  1, 123.    Compare  Yoong,  loc.  cit.,  168, 169. 


Wife-Purchase  Yields  to  Marbiage       275 

obligation  of  connubial  fidelity.  The  bridegroom  could 
maintain  his  title  as  a  husband  against  all  third  parties. 
The  gifta  conveyed  the  positive  rights,  such  as  the  power  of 
the  husband  over  the  person  and  property  of  the  wife.  It  is 
the  completion  of  that  which  has  gained  its  legal  signifi- 
cance from  the  betrothal.' 

The  theory  of  Sohm  has  elicited  much  controversy.^  It 
is  clear  that  the  ancient  betrothal  was  of  greater  legal  sig- 
nificance than  the  modern;  but  "on  the  other  hand,"  to 
quote  the  judgment  of  Pollock  and  Maitland,  "it  seems  too 
much  to  say  that  the  betrothal  was  the  marriage;"  for  the 
fulfilment  of  the  contract  could  not  be  enforced.  Moreover, 
they  justly  urge,  we  cannot  be  certain  that  betrothal  by  the 
"woman's  father  or  other  protector  was  essential  to  a  valid 
marriage;  we  have  to  reckon  with  the  possibility — and 
it  is  somewhat  more  than  a  possibility — of  marriage  by 
capture.  If  the  woman  consented  to  the  abduction,  then, 
according  to  the   theory  which   the  Christian  church  was 

ISOHM,  Eheschliessung,  75-106;  idem,  Trauung  und  Verlobung,  1-37,  passim; 
YoDNG,  loc.  cit.,  167-69. 

2  His  Eheschliessung  (1875)  called  forth  the  Verlobung  und  Trauung  (1876)  of 
Feiedbeeg;  also  a  critique  by  Meyer,  in  the  Jenaer  Lit.  Ztg.,  Jan.,  1876,  501  ff. 
Sohm  defends  his  position  in  Trauung  und  Verlobung  (1876),  15  ff.;  in  his  Zur 
Trauungsfrage,  11  ff. ;  and  in  the  Strassburger  Festgabe  filr  ThOl,  84,  98  n.  27.  The 
views  of  Sohm  and  others  are  examined  by  Habicht,  Altdeutsche  Verlobung  (1879), 
who  concludes  (75)  that  "  Die  Verlobung  ist  nicht  Beginn  der  Ehe,  aber  die  rechtliche 
Grundlage  und  nothwendige  Voraussetzung  derselben."  The  Trauung  is  "  fulfilment 
of  the  betrothal "  and  "  constitutes  the  beginning  of  the  marriage."  Lehmann,  Ver- 
lobung und  Hochzeit  (1882),  examines  the  problem  from  the  standpoint  of  northern 
law,  and  reaches  the  analogous  result  (124,  125)  that  the  "betrothal  is  a  primary 
and  independent,  the  nuptials  (.Hochzeit)  a  secondary  and  dependent,  act  for  joining 
in  marriage  (.Eheschliessungsact) ;  the  betrothal  is  the  real  Eheschliessungsact,  the 
nuptials  an  Ehevollziehu7igsact."  Sohm's  view  is  adopted  by  Spiegatis,  Verlobung 
und  Verm&hlung,  it.;  it  is  attacked  by  Scheuel,  Kirchliches  EheschliesKungsrecht, 
35  ff. ;  it  is  regarded  as  extreme  (ubertrieben),  though  in  spirit  right,  by  Schubeet, 
Die  evangelische  Trauung,  15  n.  2;  Loening,  Gesch.  d.  deut.  Kirchenrechts,  II,  581, 
600  n.  1 ;  both  betrothal  and  tradition  are  essential  to  a  German  marriage  according 
toSEHXiNG,  Unterscheidung  der  VerUibnisse,  30;  while  Heusl.ee  holds  that  neither 
betrothal  nor  tradition,  but  the  copula  carnalis,  is  the  essential  point :  Institutionen, 
II,  284.  Cf.  Klein,  Das  Ehevcrldbniss,  130-34 ;  Scheoedee,  Rechtsgeschichte,  296,  297, 
and  authorities  there  cited ;  and  Dieckhoff,  Kirchliche  Trauung^  66,  67,  note,  97, 
who  favors  and  summarizes  Sohm's  view. 


276  Matrimonial  Institutions 

gradually  formulating,  there  would  be  all  the  essentials  of  a 
valid  marriage,  the  consent  to  be  husband  and  wife  and  the 
sexual  union."* 

II.    RISE    OP    FREE    MARRIAGE:    SELF-BEWEDDUNG    AND 
SELF-GIFTA 

Already  in  the  eleventh  century  the  forms  of  marriage 
were  entering  upon  another  stage.  It  is  possible,  in  the 
historical  period,  as  already  seen,  that  a  valid  marriage  could 
arise  in  abduction,  through  subsequent  payment  of  a  fine; 
and  it  is  not  impossible  that  side  by  side  with  wife-purchase 
the  custom  of  free  marriage  by  simple  agreement  of  the 
parties  may  have  existed,  as  we  have  found  it  existing  among 
other  peoples.  But  the  practice  could  not  have  been  widely 
extended,  and  it  may  imply  merely  the  indulgence  or  silent 
consent  of  the  legal  protector.^  Hitherto,  so  far  as  the  posi- 
tive provisions  of  the  law-books  are  concerned,  betrothal  by 
the  natural  guardian  or  his  representative'  had  been  essen- 

1  Pollock  and  Maitland,  II,  368.    Cf.  Daegun,  Mutterrecht  und  Raubehe,  23  S. 
Besides  the  normal  or  full  marriage  of  free  men  and  women,  just  described,  the 

law-books  recognize  concubinage,  so-called  "marriages"  between  the  unfree,  and 
unions  between  the  free  and  the  unfree.  The  church,  by  giving  them  a  sacramental 
sanction,  constantly  strove  to  raise  these  irregular  connections  to  the  rank  of  gen- 
uine wedlock.  See  especially  Koehne,  "  Die  Geschlechtsverbindungen  der  Unfreien," 
in  Gierke's  Untersuchungen,  XXII,  1-23 ;  and  the  literature  on  the  subject  mentioned 
in  the  Bibliographical  Note  at  the  head  of  this  chapter. 

2  That  free  marriage  sometimes  occurred  is,  of  course,  a  conjecture.  But  see 
Dargun,  Mutterrecht  und  Raubehe,  24  ff . ;  and  Kohler,  in  ZVR.,  VI,  321,  for  the 
alleged  survival  of  marriage  ohne  Mundium,  which  they  assume  to  be  a  survival  of 
Mutterrecht.  This  assumption,  of  course,  is  doubtful.  Cf.  Ungee,  Die  Ehe,  105, 106. 
See  chap,  iv,  above. 

3  "  So  long  as  marriage  was  a  strictly  civil  [lay]  ceremony,  as  well  as  a  purely 
civil  engagement,  the  bride's  father  or  guardian  performed  the  rite.  It  was  he  who 
took  her  by  the  neck  and  shoulders,  and  gave  her  to  the  bridegroom.  He  gave  the 
symbolic  shoe.  In  the  Danish  matrimonial  rite  of  a  subsequent  period  the  father's 
part  was  even  more  impressive.  In  language,  never  in  later  times  permitted  to  our 
English  clergy,  he  declared  himself  the  actual  maker  of  the  marriage,  when,  on 
hand-fasting  the  bride  and  groom,  he  said  to  the  latter,  '  I  join  this  woman  to  you  in 
honour  to  be  your  wife,  with  a  right  to  half  of  your  bed  and  keys,  and  to  a  third  of 
your  goods  acquired  or  to  be  acquired,  according  to  the  law  of  the  land  and  St. 
Eric.  In  the  name  of  the  Father,  and  of  the  Sou,  and  of  the  Holy  Ghost.' "— Jeaffee- 
SON,  Brides  and  Bridals,  I,  53.  Cf.  on  the  Danish  " hand- fasting  "  Brand,  Popular 
Antiquities,  II,  87, 88 ;  Bullingee,  Christen  State  of  Matrimonye,  43. 


Wife-Purchase  Yields  to  Marriage       277 

tial  to  a  valid  contract.  Originally  the  father  could  betroth 
his  daughter  even  against  her  will.^  But,  just  as  the  guard- 
ianship of  the  husband  as  respects  the  wife's  property  grad- 
ually becomes  transformed  into  a  merely  formal  guardianship 
or  judicial  control,^  so  the  power  of  the  father  is  first  weak- 
ened by  granting  the  daughter  a  veto  on  the  choice  of  a 
bridegroom;  that  is,  by  making  her  consent  necessary  to  a 
binding  contract ;  and  then,  presently,  the  relations  of  guard- 
ian and  ward  are  entirely  transposed:  self -betrothal  by  the 
daughter  constitutes  a  valid  contract,  while  the  father  is 
allowed  only  a  veto  power.  Naturally  it  was  the  widow, 
in  the  case  of  a  second  marriage,  who  first  succeeded  in 
emancipating  herself  from  tutorial  control.  Among  the 
Germans  in  the  time  of  Tacitus  it  was  against  popular 
usage,  if  not  illegal,  for  a  widow  to  marry  again.^  But  in 
the  folk-laws  she  appears  on  practically  the  same  footing 
as  a  girl  in  this  regard;*  and  placed  as  she  was  "between 
two  families,"  with  the  "possibility  of  recourse  to  her  own 
kindred"  in  case  her  first  husband's  relatives  as  possessors 
of  the  mund  over  her  refused  their  assent  to  a  second 
marriage,  she  soon  succeeded  in  freeing  herself  entirely 
from  such  restraints.^ 

Canute  forbids  the  marriage   of  a   maiden   against  her 

iSoHM,  Eheschliessung,  50;  cf.  Lehmann,  13. 

2  "  Processvormundschaft" :  Sohm,  op,  cit.,  52. 

3  Tacitus,  Germania,  cc.  18, 19. 

*  These  codes  sometimes  fixed  a  term  within  which  a  widow  may  not  marry,  bnt 
a  second  marriage  is  treated  as  entirely  legal :  Lex  salica,  c.  44 :  Beheend,  57-59 ;  Lex 
saxonum,  tit,  vii,  3,  6 :  Walter,  Corp.  juris  germ,,  I,  387 ;  Lex  wisigothorum,  lib. 
iii,  tit.  2,  c.  1,  tit.  4,  c.  2,  7:  Walter,  I,  470,  471,  477,  478;  Lex  burgund.,  tit.  24,  c.  1, 
tit.  52:  Walter,  I,  316,  330;  Edictum  BothM-is,  cc.  178, 182, 188:  Wai.tee,  I,  710,  711, 
714;  ^thelbeeht,  76;  ^theleed,  V,  21 ;  Canute,  73,  74 :  Schmid,  Ge.5etje,  8, 224, 310, 
312.  Cf.  Kabicmt,  Altd.  Verlobung,16S.;  Sohm,  i^Aesc/iZtessMngr,  63,  who  differ  as  to 
the  interpretation  of  the  much-disputed  c.  44,  lex  sal.  de  reipus ;  Quiun,  Rechtsalt,, 
452 ;  Schroedee,  Giiterrecht,  I,  56,  57. 

sHabicht,  Altdeutsche  Verlobung,  26,  27.  The  Saxon  and  Lombard  laws  allow 
the  widow  to  appeal  to  hor  own  family  in  case  her  legal  tutor  —  that  is,  her  deceased 
husband's  family  —  will  not  consent :  Habicht,  17, 18.  On  the  freedom  of  the  Eng- 
lish widow  see  Roeder,  Die  Familie  bei  den  Angelsachsen,  26  £E. 


278  Matrimonial  Institutions 


will.'  If  consent  of  father  or  guardian  be  not  obtained, 
the  betrothal  is  still  binding,  but  the  daughter  may  be  pun- 
ished by  loss  of  inheritance.  Thus  early  do  we  find  the 
beginning  of  the  private  marriages,  which  subsequently, 
under  the  names  of  "irregular"  or  "clandestine,"  played 
so  great  a  r6le  in  the  history  of  matrimonial  law. 

The  form  of  contract  observed  in  self-betrothal  is  usually 
the  wed,  sealed  by  the  Handschlag  or  hand-fasting.  The 
"real  contract"  through  payment  of  the  arrha  is,  however, 
also  retained;  but  the  arrha  is  paid,  not  to  the  guardian, 
but  to  the  bride,  and  appears  most  frequently  in  the  form  of 
the  ring,  so  well  known  to  us  as  the  betrothal  or  "engage- 
ment" ring.^  The  ring  had  been  used  by  the  Romans  as 
arrha;  and,  like  the  bridal  wreath  and  the  bridal  veil,  it 
seems  to  have  been  borrowed  from  them  by  the  Germans.^ 

'  Canute,  II,  75 :  "  and  let  no  one  compel  either  woman  or  maiden  to  him  whom 
she  herself  mislikes,  nor  for  money  sell  her;  unless  he  is  willing  to  give  anything 
voluntarily."  —  Thorpe,  I,  417.  For  the  similar  provisions  of  Gothic  and  Lombard 
law  see  Habicht,  23  ff. 

2SoHM,  Eheschliessung,  54.  Sohm's  theory  of  self-betrothal  and  selt-Trauuiig  is 
criticised  by  Friedberg,  Verlobung  und  Trauung,  9, 11  ff.  In  general  see  Spirgatis, 
Verlobung  und  Vermahlung,  6  ff . ;  Hecsler,  Institutionen,  II,  286;  and  with  Sohm's 
Eheschliessung,  as  below  cited,  compare  his  Zur  Trauungsfrage,  12  ff. 

3 The  ring  is  mentioned  as  ati-ha  in  Dig.,  xiv,  tit.  iii,  5,  §15;  six,  tit.  i,  11,  §6: 
Corpus  juris  civ.,  1, 189,  244.  Arra  appears  in  connection  with  sponsalia.  Dig.,  xxiii, 
tit.  ii,  38:  Corpus  juris  civ.,  I,  297.  Cf.  Smith,  Diet.  Greek  and  Roman  Ant.,  I,  193; 
Ludlow,  in  Diet.  Christ.  Ant.,  1, 142  ff. ;  Babington,  ibid.,  II,  1807-9 ;  Meyrick,  ibid., 
1105.  Originally,  we  are  told,  the  Roman  lover  presented  his  betrothed  a  plain  ring 
of  iron,  in  later  days  of  gold,  but  did  not  receive  one  in  exchange:  Friedlandee, 
Sittengeschichte,  I,  456;  Kdlischee,  in  ZFE.,  X,  210.  On  the  annulus  pronubv^  and 
its  acceptance  by  the  Germans  see  Junius,  De  annulo  romanorum;  MtJllee,  De 
annulo  pronubo;  Hofmann,  Verlobungs-  und  Trauring,  829  ff. ;  Siegel,  Deutsche 
Rechtsgeschichte,  451;  Weinhold,  Deutsche  Frauen,  I,  343;  Bingham,  Orig.  Ecc, 
VII,  311,  313-16,  .337,  339;  Howlett,  in  Andrews's  Curious  Church  Customs,  105,107-9; 
Friedberg,  Eheschliessung,  26  n.  3;  Sohm,  Eheschliessung,  54,  55. 

In  the  marriage  ceremony  of  the  Greek  church  two  rings  are  used,  one  of  silver 
and  one  of  gold;  see  ritual  for  espousals  in  the  eastern  church  in  Buen,  Parish 
Registers,  lil,H2;  and  in  Bingham,  The  Christian  Marriage  Ceremony,  214  ff.,  219; 
and  cf.  Zhishman,  Das  Eherecht  der  orientalischen  Kirche,  691;  and  Meyeick,  in 
Diet.  Christ.  Ant.,  II,  1105.  The  betrothal  ring  appears  among  the  Slavs:  Post, 
Familienrecht,  236.  In  mediseval  England  "a  rush  ring  was  supposed  to  possess 
some  peculiar  charm.  Richard  Poore,  bishop  of  Salisbury,  in  his  Constitutions,  anni 
1217,  forbids  the  putting  of  rush  rings,  or  any  the  like  matter,  on  women's  fingers,  in 
order  to  the  debauching  them  more  readily,"  and  he  insists  that   some  people 


Wife-Purchase  Yields  to  Marriage       279 

On  the  other  hand,  though  there  can  be  little  doubt  of  the 
historical  connection  of  the  betrothal  ring  and  its  duplicate, 
the  wedding  ring,  with  the  arrJia,^  whether  or  not  it  may  be 
regarded  as  a  surviving  symbol  of  the  former  servitude  of 
the  wife  must  depend  upon  the  acceptance  or  rejection  of 
the  view  that  the  actual  sale-marriage,  as  opposed  to  the 
transfer  of  the  mund,  ever  existed  among  the  Teutonic 
peoples.  "A  favorite  theory,"  says  Henry  Adams,  "has 
insisted  upon  regarding  the  wedding  ring  as  a  badge  of 
servitude  or  a  symbol  of  purchase.  This  idea  cannot  be 
maintained.  The  wedding  ring  appears  in  its  origin  to 
have  been  merely  the  earnest  money  which  bound  the  con- 
tract of  marriage  between  the  father  and  the  husband,  and 
was  not  the  only  symbol  of  the  kind  in  early  custom, 
although  no  other  survives  in  modern  use.    The  ring  proved, 

thought  that  "  what  was  thus  done  in  jest  was  a  real  marriage  " :  Bden,  op.  cit.,  143. 
Cf.  Douce,  Illustrations  of  Shakespeare,  I,  315-19 ;  Wood,  The  Wedding  Day,  232,  233, 
241.  On  the  various  uses  and  symbolism  of  the  ring  among  the  Teutonic  peoples 
read  the  lecture  of  Hodgetts,  Older  England,  125-57  ;  and  a  valuable  general  treatise 
on  the  ring  is  Jones's  Finger  Ring  Lore  (London,  1890).  Tegg,  The  Knot  Tied,  309-37, 
has  two  chapters  on  the  marriage  ring ;  throughout  Wood's  The  Wedding  Day  in  all 
Ages  and  Countries  much  information  on  the  subject  will  be  found ;  and  there  is  an 
interesting  passage  in  Swinbuene,  Of  Spousals,  207-9,  quoted  below,  with  other 
references,  chap,  vii,  sec.  1. 

The  kiss  at  betrothal  appears  to  have  been  borrowed  by  the  Christians  from 
older  pagan  custom,  and  it  was  first  given  legal  importance  by  Constantine.  If  the 
kiss  were  given,  he  provided  that,  in  case  one  of  the  parties  died  before  the  nuptials, 
the  other  party  was  entitled  to  inherit  half  the  espousal  donations:  Cod.  Theod.,  lib. 
iii,  tit.  5,  leg.  5;  Cod.  Just.,  lib.  v,  tit.  3,  leg.  16:  Corpus,  juris  civ.,  II,  194.  Tertul- 
LiAN,  On  the  Veiling  of  Virgins,  chap.  11:  Ante-Nicene  Faths.,  IV,  34,  mentions  the 
betrothal  kiss  as  a  heathen  custom.  Cf.  Venables,  in  Diet.  Christ.  Ant.,  II,  905,  906; 
Bingham,  Orig.  Ecc.,  VII,  316;  V,  75;  Weinhold,  Deutsche  Frauen,  I,  343,  344.  In 
England  the  priest  joined  in  the  ceremony  of  kissing  at  the  nuptials.  "In  the 
Articles  of  Visitation  in  the  diocese  of  London  in  1554  is  the  following,  'Item,  whether 
there  be  any  that  refuseth  to  kysse  the  Prieste  at  the  solempnization  of  matrimony, 
or  use  any  such  lyke  ceremonies  heretofore  used  &  observed  in  the  Churche ' " : 
Burn,  op.  cit.,  143;  cf.  Douce,  Illustrations  of  Shakespeare,  I,  112,  403;  Wood,  The 
Wedding  Day,  Index. 

1  See  especially  the  careful  monograph  of  HoFMANN,  Ueber  den  Verlobungs-  und 
Trauring  (Vienna,  1870);  and  compare  Feiedberg,  "Zur  Geschichte  der  Eheschlies- 
svmg,"  ZKR.,  I,  370  n.  34,  372  n.  41;  Spirgatis,  Verlobung  und  Vermdhlung,  16,  17; 
Theupp,  The  Anglo-Saxon  Home,  48  n.  50.  Dogmatic  writers,  of  course,  see  in  the 
ring  an  alleged  Christian  symbolism:  cf.  Beissonius,  De  ritu  nuptiarum,  3  ff. ; 
Klee,  Die  Ehe,  127-29;  GOschl,  Darstellung  der  kirchlich-christlichen  Ehegesetze, 
183  S. ;  Dieckhoff,  Die  kirch.  Trauung,  28,  29. 


280  Matrimonial  Institutions 


not  that  marriage  was  a  sale,  but  that  marriage  was  a  civil 
contract  executed  according  to  the  strict  formalities  of  con- 
tracts in  the  primitive  law ;  it  proved,  not  that  women  were 
deprived  of  rights,  but  that  their  rights  were  secured  to 
them  in  marriage  by  the  most  careful  provisions  known  to 
early  society." '  This  is,  of  course,  a  very  emphatic  state- 
ment of  one  side  of  the  case;  and  it  should  not  be  overlooked 
that  the  ring  may  stand  as  a  symbol  of  equitable  contract ; 
and  yet  the  arrha,  which  the  ring  is,  may  mark  but  the 
intermediate  stage  in  the  evolution  of  the  betrothal  from  the 
ancient  process  of  actual  sale.  Nor  does  the  connection  of 
the  betrothal  ring  with  the  Roman  and  German  arrha 
necessarily  exclude  other  historical  associations.  Kulischer,^ 
for  instance,  traces  its  origin  to  wife-capture.  Like  the 
betrothal  band  or  thread,  which  sometimes  appears  with  it 
or  in  its  place,  he  believes  that  the  ring  symbolizes  the 
fetters  with  which  the  captive  maid  was  bound.  But  the 
evidence  to  support  this  theory  is  not  conclusive.^  The 
practice  of  exchanging  rings,  of  giving  a  ring  to  the  bride- 
groom as  well  as  to  the  bride,  did  not  arise  until  the  later 

1  Adams,  "  Primitive  Eights  of  Women,"  Hist.  Essays,  35. 

2  KuLiscHEE,  "  Intercommunale  Ehe  durch  Raub  und  Kauf,"  ZFE.,  X,  208-10. 

3  The  proof  consists  in  the  interpretation  of  the  supposed  symbolism.    Thus  the 

German  lover,  in  early  times,  placed  upon  the  bride's  finger  a  ring  made  of  a  twig 

plucked  from  a  tree  upon  his  own  land,  the  bride  thus  being  "symbolically  bound  to 

the  new  locality":  Ungee,  Die  Ehe,  106.    The  thread  or  band  is  interpreted  as  the 

bond  of  the  captive ;  and  Kulischer  gives  the  following  illustration  from  Dorthera 

custom: 

"  Komm,  komm  Maria  lieb,  und  reich  mir  deine  Hand, 

Hier  hast  du  das  Ringelein  und  um  den  Arm  das  Band," 
runs  a  Swedish  rhyme.    In  an  Upland  dance,  the  maiden  sings: 
"  Und  willst  mich  schliessen  an's  Herz  dein, 
Sollst  mir  zuvor  geben  ein  Ringelein." 

To  which  the  young  man  replies : 

"  Hier  hast  du  Ring  und  Verlobungsband, 
Du  sollst  mich  nicht  betrtigen." 

Sometimes  these  symbols  are  brought  into  connection  with  the  sword  —  also,  it  is 
assumed,  a  survival  of  violence.  Thus  in  an  Anglo-Saxon  picture  of  the  eighth 
century  the  bridegroom  reaches  to  the  bride  the  ring  upon  a  sword  or  staff:  KULI- 
SCHEK,  209;  c/.  Weinhold,  DeutscJie  Frauen,  I,  241 ,242. 


Wife-Purchase  Yields  to  Marriage       281 

Middle  Ages.'  In  England  the  drinking  of  a  cup  of  wine 
and  the  breaking  of  a  gold  piece  between  the  bride  and 
bridegroom  appear  as  forms  of  the  arrha.^  Naturally  after 
the  arrha  is  paid  to  the  bride  it  becomes  confused  with  the 
wed,  and  soon  all  distinction  between  the  two  forms  of  con- 
tract is  lost.  "Indeed  at  an  early  day  the  arrha  was  called 
a  wed,  and  it  was  legally  indifferent  whether  the  oath,  hand- 
fasting  or  other  wed,  or  the  ring  or  penny'  were  used. 
Therefore  the  ring  and  penny  are  found  in  conjunction  with 
the  glove ;  that  is,  with  a  real  wed.  And  it  is  especially  of 
interest  that  the  English  language  still  calls  marriage  a 
wedding,  and  that  in  England  the  ring  (that  is  the  arrha)  is 
still  used  to  wed  the  bride."  * 

Simultaneously  with  the  rise  of  self-betrothal,  the  bride 
gained  also  the  right  of  Geli-gifta.  The  parties  might  con- 
duct the  ceremony  themselves.^  But  in  place  of  the  natural 
guardian,  who  originally  possessed  the  sole  legal  right  to 
oflBciate  at  the  tradition  of  the  bride,  appears  often  a  "chosen 
guardian,"  selected  by  the  bride  or  by  the  betrothed  couple. 
The  person  thus  selected  may  be  the  father  or  other  relative 
of  the  bride,  or  any  third  person  whatever.^  Moreover,  in 
the  marriage  rituals  of  the  eleventh  century  ^  an  orator  or 
Fiirsprecher  appears,  who  acts  as  an  "assistant"  to  the 
natural  guardian,  dictating  the  solemn  phrases  of  the  ritual 
and  guiding  the  whole  proceeding.  Friedberg  regards  the 
orator  as  the  predecessor  of  the  priest,  and  thus,  of  course,  of 

iWeinhold,  op.  cit.,  343;  Scheoedee,  Rechtsgeschichte,  700,  note;  Siegel, 
Deutsche  Rechtsgeschichte,  453,  who  ascribes  the  practice  to  the  imitation  of  the 
court  manners.  Even  now  in  the  English  ceremonial  only  the  bride  receives  a  ring, 
consistently  with  its  origin  in  the  arrha.    Cf.  Feiedbeeg,  op.  cit.,  38,  notes. 

2FEIEDBEEG,  op.  cit.,  42,  43;  SoHM,  Eheschliessung,  54;  cf.  Eoedee,  DieFamilie 
bei  den  Angelsachsen,  30  ff. 

3  That  is,  forms  of  the  arrha, 

*SoHM,  Eheschliessung,  56;  cf.  Max  MOllee,  Essays,  II,  251. 

»  Feiedbeeg,  op.  ctt.,  25.  6  Sohm,  op.  cit.,  67  ff. 

T Ibid.,  67,  and  the  Italian  ritual  of  the  eleventh  century  in  Anhang,  II,  318,  319. 


282  Matrimonial  Institutions 


the  civil  magistrate  as  conductor  of  the  nuptial  ceremony.' 
But  Sohm  has  shown  that  the  functions  of  the  priest  or 
magistrate  grew  out  of  those  of  the  "chosen  guardian,"  and 
that  the  "  Traimng  by  a  Filrsprecher  is  in  itself  a  contradic- 
tion." The  latter  is  "never  an  actor,  but  always  an  aid  to 
the  actor.  He  has  in  truth  only  to  speak,  nothing  to  do."' 
While  thus  theoretically  there  is  a  great  difference  between 
the  orator  and  the  chosen  guardian,  and  both  could,  and 
probably  did,  for  a  time  participate  in  the  same  ceremony, 
still  the  practical  result  is  in  accordance  with  the  view  of 
Friedberg.  For  if,  as  Sohm  has  shown,  the  motive  for  the 
creation  of  the  institution  of  orator  was  the  fact  that  the 
elaborate  phrases  of  the  old  rituals  were  rapidly  passing 
from  the  memories  of  the  people,  and  it  was  necessary  to 
call  in  a  lawyer  or  other  person  skilled  therein  to  assist  the 
parties,^  it  is  certain  that  the  chosen  guardian,  whether  lay- 
man or  priest,  soon  satisfied  this  necessity,  and  ultimately 
inherited  the  functions  of  the  orator.* 

From  about  the  beginning  of  the  thirteenth  century  self- 
gifta  was  the  only  form  of  nuptials ;  and  an  important  result 
of  the  custom  was  the  gradual  omission  of  the  solemn  sym- 
bols, such  as  the  giving  of  the  sword,  hat,  or  mantle,  indica- 
tive of  the  transfer  of  the  powers  of  guardianship.  The 
tradition  of  the  bride  was  no  longer  a  real  tradition.  The 
gifta  had  become  a  simple  oral  declaration  of  union.^ 
Besides  this  modification  of  the  ceremony  is  another,  both 
of  which  have  been  retained  to  our  own  times.  "We  often 
find  that  the  chosen  guardian  not  only  gives  the  bride  to 
the  bridegroom,  but  likewise  the  bridegroom  to  the  bride; 

1  Feiedbeeg,  op.  cit.,  25  ff.,  93  ff.,  62. 

2  Sohm,  op.  cit.,  71  fit.,  166  n.  31.  The  Filrsprecher  or  orator  here  mentioned,  in 
accordance  with  the  view  of  Sohm,  must  not  be  confused  with  the  forespreca  of  the 
old  English  formulary  above  quoted ;  the  latter  was  the  guardian  himself  or  a  rep- 
resentative—  a  Processvormund :  Sohm,  72. 

3  Sohm,  op.  cit.,  67.  *  Sohm,  ibid.,  166  n.  31,  concedes  this. 
5 A  Zvsammensprechen :  Sohm,  op.  cit.,  73. 


Wife-Purchase  Yields  to  Marriage       283 

because,  in  reality,  he  occupies  the  same  position  in  regard 
to  each,  that  is  a  position  implying  no  power." '  Thus  the 
marriage  is  no  longer  a  surrender  of  the  power  of  the 
guardian  and  a  transfer  of  the  same  to  the  bridegroom,  but 
only  the  expression  of  a  mutual  gift.^ 

Seli-gifta  and  the  practice  of  choosing  a  third  party  to 
assist  the  bride  has  an  important  bearing,  as  already  inti- 
mated, on  the  development  of  the  functions  of  the  clergy  in 
the  marriage  celebration.  But  before  discussing  this  point 
it  is  desirable  to  notice  another  fact  essential  for  a  proper 
understanding  of  the  present  forms  of  solemnization.  From 
the  eleventh  century  onward  it  became  customary  in  Europe 
to  repeat  the  ceremony  of  betrothal,  or  "spousals,"  at  the 
nuptials.  The  rituals  which  have  been  preserved  are  divided 
into  two  parts.  "The  first  part  contains  a  formal  contract 
of  betrothal  with  the  guardian  (Vogi)  of  the  bride  in  the 
form  of  a  wed.  The  second  part  contains  the  Training 
through  the  solemn  surrender  of  the  bride  by  the  guardian."  ^ 
This  remarkable  dualism  is  the  most  striking  feature  of  the 
present  marriage  service  of  the  English  church,*  which  is 
derived  through  the  liturgies  of  Elizabeth  and  Edward  VI.^ 
from  the  most  ancient  manuals,  particularly  those  of  Here- 

^Ibid,  ^A  Zusammengeben:  ibid.  3/6id.,  100  £F. 

*See  the  ritual  in  Bingham,  The  Christian  Marriage  Ceremony,  163, 164;  Tegg, 
The  Knot  Tied,  10  ff. ;  Mooee,  How  to  Be  Married,  27  S. 

"This  first  part  of  the  office  was  anciently  termed  the  espousals,  which  took 
place  some  time  before  the  actual  celebration  of  marriage.  The  espousals  consisted 
in  a  mutual  promise  of  marriage  which  was  made  by  the  man  and  woman  before 
the  bishop  or  presbyter  and  several  witnesses;  after  which  articles  of  agreement 
of  marriage  (called  tabulae  matrinioniales),  which  are  mentioned  by  Augustine, 
were  signed  by  both  persons.  After  this  the  man  delivered  to  the  woman  the  ring 
and  other  gifts,  an  action  which  was  called  subarrhation.  In  the  later  ages  the 
espousals  have  always  been  performed  at  the  same  time  as  the  office  of  matrimony, 
both  in  the  western  and  eastern  churches ;  and  it  has  long  been  customary  for  the 
ring  to  be  delivered  to  the  woman  after  the  contract  has  been  made,  which  has 
always  been  in  the  actual  office  of  matrimony." — Palmer,  Origines  liturgicae  (1839) ; 
quoted  also  by  Jeaffreson,  Brides  and  Bridals,  I,  68,  who  in  his  chapter  on 
"Espousals"  (op.  cit.,  I,  60-87)  gives  much  information  relating  to  ancient  betrothal 
customs.    Cf.  Brand,  Popular  Antiquities,  II,  87-98  (betrothal  customs). 

5  Liturgies  of  Edward  VI.,  128, 129;  Liturgies  of  Elizabeth,  218,  219. 


284  Matrimonial  Institutions 

ford,  Durham,  Sanim,  and  York.  The  betrothal  comes  first, 
and  it  is  always  a  contract  in  words  of  the  future  tense,  cor- 
responding to  the  sponsalia  per  verba  de  futuro  of  the 
canonists,  which  will  again  be  referred  to.  In  the  York 
service,  for  example,  the  priest  says  to  the  man:  "Wylt 
thou  have  this  woman  to  thy  wyfe?"  and  to  the  woman: 
"Wylt  thou  have  this  man  to  thy  husbande  ?"  Each  party 
answers:  "I  wyll."  Then  takes  place  the  solemn  tradition, 
or  giving  of  the  bride  to  the  bridegroom,  who  says,  in  words 
of  the  present  tense:  "Here  I  take  thee  N.  to  my  wedded 
wyfe;"  and  the  woman  responds  in  the  same  formula: 
"Here  I  take  thee  N.  to  my  wedded  husbande." ' 

But  the  repetition  of  the  betrothal  is  of  no  legal  signifi- 
cance, save  as  a  guaranty  of  the  existence  of  a  contract 
before  the  actual  union.  It  is  a  "declaratory"  act,  a  mere 
confession  of  betrothal.  As  a  result  of  the  repetition  there 
soon  arises  an  entire  confusion  in  the  symbols.  In  a  Sua- 
bian  ritual  of  the  twelfth  century  the  guardian  delivers  to 
the  bridegroom  "not  only  the  sword,  hat,  and  mantle,  that 
is,  symbols  of  the  gifta,  but  also  the  wette  or  wed,  the  ring 
and  penny,  that  is,  symbols  of   the   betrothal.     Thus  the 

1  See  the  "Ordo  ad  facienda  sponsalia,"  in  the  Manuale  et  processionale  ad 
vsum  insignis  ecclesiae  eboracensis:  Surtees  Society  Publications,  LXIII,  26,  27. 
The  double  ceremony  also  appears  in  the  Sarum  or  Salisbury  manual :  Maseell, 
Monumenta  ritualia,  I,  56,  57:  Surtees  Society  Publications,  LXIII,  Appendix,  18, 19; 
in  the  ritual  of  Hereford  ;  that  of  the  twelfth  century  contained  in  a  Pontifical  of  the 
library  of  Magdalen  College,  Oxford ;  in  that  of  the  missal  of  Hanley  Castle,  Wor- 
cestershire, dating  from  the  thirteenth  century ;  and  in  that  of  the  fifteenth  century 
in  the  Harleian  MS.,  No.  2860,  British  Museum ;  that  of  a  Welsh  manual  of  the  same 
century,  in  the  library  of  the  dean  and  chapter  of  Hereford ;  while  it  is  plainly  dis- 
cernible in  the  ritual  of  the  twelfth  century  contained  in  the  Ely  Pontifical  of  Cam- 
bridge University  library;  and  that  of  the  Pontifical  of  Anianus,  bishop  of  Bangor, 
1268-1304 :  all  printed  in  Surtees  Society  Publications,  LXIII,  Appendix,  116, 155-69. 
Cf.  the  rituals  printed  by  Dieckhoff,  Kirchliche  Trauung,  73,  77,  89  ff. ;  and  the 
Roman  marriage  service  in  Bingham,  177,  178,  where  the  dualism  appears ;  but  in 
the  ritual  of  Paul  V.  it  is  not  retained,  unless  the  subsequent  giving  of  the  ring 
may  be  regarded  as  the  second  part.  The  priest  says:  "  M.  vis  accipere  N.  hie 
praesentem  in  tuam  legitimam  uxoremV  or  "tuum  legitimum  maritum?"  and 
on  receiving  the  answer,  "  Volo,"  proceeds:  "Ego  conjungo  vos  in  matrimonio": 
Rituali  romanum  Pauli  Quinti  (Rome,  1816),  199  f.  See  the  discussion  of  the  con- 
tents of  the  early  rituals  in  chap,  vii,  below. 


WiFE-PuECHASE    YiELDS    TO   MARRIAGE  285 

bridegroom  in  the  ring  and  penny,  instead  of  paying,  actu- 
ally received  the  remnants  of  the  old  purchase  price  of  the 
wife." ' 

In  our  own  civil-marriage  ceremonies,  where  the  dualism 
does  not  usually  appear,  the  responses  of  the  parties,  the 
"Yes,"  "I  do,"  or  "I  will,"  are  nothing  more  than  the  sur- 
vival of  the  ancient  private  betrothal,  now  recognized  by  law 
as  the  only  essential  parts  of  the  nuptial  ceremony ;  while 
the  wedding  ring  is  merely  a  duplicate  of  the  betrothal  or 
engagement  ring,  both  being  the  survival  of  the  arrha  and, 
therefore,  of  the  ancient  purchase  price  of  the  bride.^ 

The  primitive  and  mediaeval  marriage  whose  development 
has  thus  been  traced  to  the  thirteenth  century  was  not 
"civil"  marriage  in  the  strict  sense  of  the  word;  that  is,  a 
marriage  contracted  under  sanction  of  the  civil  authority,  as 
opposed  to  one  solemnized  by  authority  of  the  church  and 
according  to  ecclesiastical  forms.*  It  was  a  civil  marriage 
only  as  being  a  lay  marriage.  There  is  no  trace  of  any  such 
thing  as  public  license  or  registration ;  no  authoritative  inter-  / 
vention  of  priest  or  other  public  functionary.  It  is  purely  a  / 
private  business  transaction.  Either  the  guardian  give^ 
away  the  bride  and  conducts  the  ceremony;  or  else  th6 
solemn  sentences  of  the  ritual  are  recited  independently  by 
the  betrothed  couple  themselves.  These  formalities  and  the 
presence  of  the  friends  and  relatives  *  are  the  only  means  of 

1 SOHM,  Eheschliessung,  101  ff.  The  text  of  this  extremely  interesting  marriage 
ritual  is  printed  in  Feiedbeeg,  Eheschliessung,  26,27;  and  in  Sohm,  Anhang,  III,  319, 
320.  For  a  description  of  these  early  rituals  see  Weinhold,  Deutsche  Frauen,  I, 
340-48. 

2  Sohm,  op.  cit.,  1C5  n.  70.  On  the  ring  in  English  rituals  see  Feiedbeeg,  op. 
cit,  38,  note,  46,  47. 

376id.,  30. 

*  Tacitus,  Germania,  18 :  "  intersunt  parentes  ac  propinque."  It  was  customary 
in  the  Middle  Ages  for  the  assembled  friends  to  form  a  circle  —  Ring  —  about  the 
betrothed  couple  during  the  ceremony.  Publicity  was  made  a  legal  requirement  by 
Pippin:  Waltee,  Corpus  juris,  II,  42.  Feiedbeeg,  op.  cit.,  24  n.  4,  gives  also  refer- 
ences to  medisBval  poems.  He  regards  the  practice  of  inviting  a  large  number  of 
friends  as  originating  in  the  desire  to  secure  publicity.  Particular  cities  passed 
laws  requiring  the  presence  of  witnesses ;  for  example,  Prague.  / 


286  Matrimonial  Institutions 

publicity,  the  only  substitute  for  the  modern  cognizance  of 
the  state.'  Rights  and  obligations  growing  out  of  the  mar- 
riage contract  are  enforced  in  the  local  or  national  courts 
just  as  other  civil  rights  and  obligations  are  enforced.  Only 
gradually  was  the  ancient  usage  in  this  regard  superseded. 
Slowly  but  firmly  was  the  exclusive  jurisdiction  of  the  church 
in  matrimonial  causes  established.  Spiritual  courts  and  the 
canon  law  came  into  existence.  In  England  after  the  Nor- 
man Conquest  the  removal  of  ecclesiastical  suits  from  the 
temporal  to  the  new  church  tribunals  led  eventually  to 
serious  evils.  With  the  Reformation  the  way  was  open  for 
the  intervention  of  the  civil  power.  Beginning  in  Holland 
and  America,  the  state  has  claimed  her  right  to  control  the 
marriage  celebration  and  the  administration  of  matrimonial 
law  as  being  of  vital  interest  to  society.  How  this  came  to 
pass  will  be  explained  in  the  following  chapters. 

1  Except  the  publication  of  banns  hereafter  mentioned. 


CHAPTER  VII 

RISE  OF  ECCLESIASTICAL  MARRIAGE:    THE  CHURCH 
ACCEPTS  THE  LAY  CONTRACT  AND  CEREMONIAL 

[Bibliographical  Note  VII. —  For  the  original  Christian  usage 
the  writings  of  the  early  Fathers  are  of  primary  interest,  and  an  Eng- 
lish version  of  them  is  available  in  The  Ante-Nicene  Fathers  (Buffalo, 
1885-87),  edited  by  Roberts  and  Donaldson  and  revised  by  A.  C.  Coxe. 
An  indispensable  handbook  and  bibliographical  guide  for  the  study  of 
this  subject,  as  well  as  for  a  multitude  of  questions  connected  with  the 
first  eight  centuries  of  Christian  history,  is  Smith  and  Cheetham's 
Dictionary  of  Christian  Antiquities  (London,  1875-80),  particularly 
Meyrick's  article, "  Marriage,"  and  Ludlow's  clear  and  thoroughly  criti- 
cal discussions  of  the  "  Benediction,"  "  Betrothal,"  and  "  Arrhae."  Im- 
portant sources  for  this  chapter  are  also  the  Corpus  juris  civilis 
(Berlin,  1872),  edited  by  Kriiger  and  Mommsen ;  Richter  and  Fried- 
berg's  Corpus  juris  canonici  (Leipzig,  1881-);  Haddan  and  Stubbs's 
Councils  and  Ecclesiastical  Documents  (Oxford,  1869-78);  Wilkins's 
Concilia  (London,  1736-37);  Gee  and  Hardy's  Documents  (London 
1896);  Glanville's  Tractatus,  in  Vol.  II  of  Phillips's  jReic/is-  und  Rechts- 
geschichte  (Berlin,  1827-28);  and  with  these  may  be  used  to  advantage 
Johnson's  Collection  of  the  Laws  and  Canons  of  the  Church  of  Eng- 
land (London,  1850).  On  marriage  at  the  church  door,  The  Old  Eng- 
lish Homilies  (London,  1868);  Gregory's  Pastoral  Care  (London,  1871); 
Hengham's  Summa parva  (London,  1737);  Home's  Mirror  of  Justices 
(ed.  Whittaker,  London,  1895);  Fitzherbert's  New  Natura  Brevium 
(Dublin,  1793);  as  well  as  Fleta,  Britton,  and  Bracton,  have  furnished 
illustrative  passages. 

The  evolution  and  character  of  the  celebration  are  best  seen  in  the 
marriage  rituals  themselves.  For  the  European  practice  in  general,  in- 
cluding the  English  rites,  consult  the  second  book  of  Selden,  Uxor 
ebraica  (Frankfort  on  the  Oder,  1673);  or  the  same  in  Vol.  II  (III,  as 
bound)  of  his  Opera  omnia  (London,  1726);  and  the  first  book  of  Mar- 
tene,  De  antiquis  ecclesiae  ritibus  (Antwerp,  1763-64),  in  both  of  which 
works  a  large  number  of  rituals,  with  a  mass  of  other  useful  materials, 
will  be  found.  Some  portions  of  Martene  are  extracted  by  Michelet  in 
chap,  ii  of  his  Origines  du  droit  frangais  (Paris,  1857);  and  many  ritu- 
als, both  of  the  East,  and  the  West,  are  epitomized  in  Palmer,  Origines 
liturgicae  (3d  ed.,  Oxford,  1839),  the  use  of  which  is  facilitated  by  Beal, 

287 


->  ^ 


288  Matrimonial  Institutions 

Analysis  of  Palmer's  Orig.  Lit.  (Cambridge,  1856).  Some  of  the  earli- 
est Christian  sacramentaria,  the  eleventh-century  ritual  of  Rennes,  and 
various  other  mediaeval  ordines  are  republished  by  DieckhoflF,  Z)ie 
kirchliche  Trammg  (Rostock,  1878).  Sohm,  Eheschliessung,  gives  the 
Rennes  service  above  named,  as  well  as  those  mentioned  in  Bibliographi- 
cal Note  VI;  and  the  principal  parts  of  the  twelfth  century  "Pontifical 
ou  rituel  de  lire  "  are  quoted  by  L^on  Gautier  in  his  fascinating  book 
La  chevalerie  (Paris,  1884),  where  may  be  found  the  best  and  most  de- 
tailed account  existing  of  the  rites  and  social  usages  connected  with  a 
mediaeval  French  marriage.  Most  important  of  all  for  the  present  pur- 
pose, however,  are  the  ancient  English  liturgies.  That  of  Sarum  (Salis- 
bury) is  published  by  Maskell,  Monumenta  ritualia  ecclesiae  anglicanae 
(Oxford,  1882),  with  the  essential  clauses  of  the  York  service  in  the 
margin;  while  the  rituals  of  Salisbury,  York,  and  Hereford,  together 
with  extracts  from  ten  other  marriage  services,  ranging  all  the  way 
from  the  eighth  to  the  fifteenth  century,  are  contained  in  Vol.  LXIII 
of  the  Surtees  Society  Publications  '^London,  1875).  With  these  may 
be  compared  the  Catholic  forms  in  the  Rituals  romanorum  Pauli 
Quinti  (Rome,  1816);  and  those  of  the  Reformation  in  the  Liturgies  of 
Edxvard  VI.  (Cambridge,  1844);  and  the  Liturgies  of  Elizabeth  (Cam- 
bridge, 1847),  both  in  the  publications  of  the  Parker  Society.  The 
earlier  of  these  may  also  be  found  in  the  "  First "  Book  of  Common 
Prayer,  1549  (exact  reprint,  black  letter,  London,  1844);  or  in  the 
"Second"  Book  of  Common  Prayer,  reprinted  in  the  same  style  at 
London  in  the  same  year.  With  these  collections  will  be  found  useful 
Lathbury,  History  of  the  Book  of  Common  Prayer  (2d  ed.,  Oxford  and 
London,  1859);  and  Daniel,  The  Prayer  Book  (London,  1877).  The 
X  marriage  rituals  of  the  modern  Greek,  Roman,  and  English  churches 
are  given  in  Bingham  (J.  F.),  The  Christian  Marriage  Ceremony  (New 
York,  1871);  and  the  English  service,  with  discussion,  may  also  be  found 
in  Tegg,  The  Knot  Tied  (London,  1877);  and  Moore,  How  to  Be  Married 
(London,  1890). 

The  principal  sources  for  the  study  of  the  Council  of  Trent  are 
Richter-Schulte,  Canones  et  decreti  concilii  tridentini  (Leipzig, 
1853);  Theiner,  Acta  genuina  concilii  tridentini  (Zagrabrae,  Croatiae, 
1874);  Father  Sarpi  (Pietro  Soave  Vdlsmo),  Historic  of  the  Council 
of  Trent  (London,  1620),  opposing  the  action  of  the  Council;  and 
his  antagonist  Pallavicino,  Istoria  del  Concilio  di  Trento  (Rome, 
1833);  or  the  Latin  version  of  the  same  by  Giattino  (Antwerp,  1670). 
A  convenient  collection  on  this  subject  is  Waterworth,  Canons  and 
Decrees  of  the  Council  of  Trent  (New  York,  1848);  while  valuable 
monographs  are  Salis,  Die  Publikation  des  tridentinischen  Rechts  der 
Eheschliessung  (Basel,  1888);  Leinz,  Die  Ehevorschrift  des  Concils  von 
Trient  (Freiburg,  1888);    Fleiner,  Die   tridentinische  Ehevorschrift 


Rise  of  Ecoleriastical  Marriage  289 

(Leipzig,  1892);  and  Meurer,  "Die  rechtliche  Natur  des  trid.  Matri- 
monial-Decrets,"  in  ZKR.,  XXII  (Freiburg,  1889).  The  action  of  the 
Council  is  treated  in  Esmein,  Le  mariage  en  droit  canonique  (Paris, 
1891);  Madan,  Thelyphthora  (London,  1781);  Bohn,  Political  Cyclopcedia 
(London,  1860);  as  also  by  Sohm  and  Friedberg.  Froude's  Lectures  on 
the  Council  of  Trent  (New  York,  1896)  are  too  general  to  be  of  value  for 
the  present  subject. 

For  the  great  case  of  Regina  v.  Millis,  historically  so  surprising,  the 
Report  of  the  Cases  of  Regina  v.  Millis  et  Regina  v.  Carroll  in  the 
Queen's  Bench,  Ireland  (Dublin,  1842);  and  10  Clark  and  Finnelly,  Re- 
ports of  Cases  Decided  in  the  House  of  Lords,  are  indispensable.  In 
connection  therewith  read  Sir  John  Stoddart,  Observations  on  the 
Opinion  (London,  1844);  his  Letter  to  Lord  Brougham  (London,  1844); 
and  Elphinstone's  paper  in  the  Law  Quarterly  Review,  V  (London, 
1889).  To  supplement  these  may  be  consulted  the  Jesuit  Sanchez's 
treatise,  Disputationum  de  matrimonii  sacramento  (Venice,  1625);  the 
older  handbook  of  Lyndwood,  Provinciate  (n.  p.,  1505;  or  Oxford,  1779); 
and,  in  general,  Bishop,  Marriage,  Divorce,  and  Separation  (Chicago, 
1891);  Stephens,  Laws  of  the  Clergy  (London,  1848);  Reeves,  History 
of  the  English  Common  Law,  IV;  Bright,  Husband  and  Wife  (New 
York,  1850);  the  concise  and  accurate  discussion  of  Pollock  and  Mait- 
land.  History  of  the  English  Law,  II;  and  the  masterly  investigation 
of  Friedberg  in  his  Eheschliessung.  For  the  more  celebrated  earlier 
cases  with  which  the  judgments  in  the  Queen  v.  Millis  are  not  in  har- 
mony see  1  Roll,  Abridgement,  353  (Foxcroft's  case,  ca.  1282);  Year  Book 
34  Edward  I.  (Delheith's  case,  1305);  2  Haggard,  Consistory  Reports, 
54-137  (Dalrymple  v.  Dalrymple,  1811);  2  Coke's  Reports,  355-59  (Bunt- 
ing V.  Lepingwell);  especially  the  numerous  decisions  in  Hale's  unique 
Precedents  and  Proceedings  in  Criminal  Causes,  1475-1640  (London, 
1847);  and  compare  the  later  case  of  Beamish  v.  Beamish,  1859-61,  in 
Clark,  9  House  of  Lords  Cases  (Boston,  1871),  which  follows  the  prece- 
dent in  Queen  v.  Millis,  giving  a  history  of  matrimonial  laws  from 
Anglo-Saxon  times.  On  this  decision  there  is  a  very  instructive  passage 
in  Pollock,  First  Book  of  Jurisprudence  (London,  1896).  On  Dalrymple 
V.  Dalrymple  consult  Dodson's  Report  of  the  Judgment  of  Sir  William 
Scott  (London,  1811).    See  further  the  note  at  the  close  of  this  chapter. 

At  the  head  of  all  scientific  historical  writers  on  the  rise  of  ecclesi- 
astical marriage  is  Sohm  whose  main  thesis,  that  the  early  canon  law 
of  the  marriage  contract  rests  on  the  principles  of  German  custom,  has 
fairly  withstood  the  test  of  criticism.  His  principal  work  on  this  sub- 
ject, Eheschliessung,  elsewhere  mentioned,  is  supplemented  by  the  Zur 
Trauungsfrage  (Heilbronn,  1879),  and  the  Obligatorische  Civilehe 
(Weimar,  1880);  and  in  these  he  has  proved  beyond  reasonable  doubt 
that  the  legal  participation  of  the  church  in  the  nuptial  celebration  is 


290  Matrimonial  Institutions 

of  late  origin.  Agreeing  with  Sohm  in  his  main  conclusion,  but  dififer- 
ing  on  some  questions,  is  Schubert,  Die  evangelische  Trauung  (Berlin, 
1890);  and  he  is  in  part  anticipated  by  Biener  in  the  much  earlier 
"Beitrage  zu  der  Geschichte  der  Civilehe,"  in  Zeitschrift  fur  deutsches 
Recht  und  Rechtsivissenschaft,  XX,  119-44  (Tubingen,  1861).  He  is 
stoutly  opposed  on  all  the  main  points  in  Sehling's  able  monograph. 
Die  Unterscheidung  der  Verlobnisse  im  kanonischen  Recht  (Leipzig, 
1887);  and  also,  especially  regarding  the  late  origin  of  the  legai  ecclesi- 
astical celebration,  by  Dieckhoff  in  the  work  already  mentioned,  as 
also  in  his  Civilehe  und  kirchliche  Trauung  (Rostock,  1880);  Moy, 
Eherecht  der  Christen  (Regensburg,  1833),  had  already  taken  the  same 
view;  Scheurl  holds  a  medial  position  in  "Consensus  facit  nuptias," 
ZKR.,  XXII,  269-86  (Freiburg,  1889);  M^hich  paper  was  preceded  by  his 
EntwicMung  des  Tcirchlichen  Eheschliessungsrechts  (Erlangen,  1877), 
and  the  "Zur  Geschichte  des  kirch.  Eheschliessungsrechts,"  ZKR., 
XV  (Freiburg  and  Tubingen,  1880).  The  last-named  article  is  criticised 
by  Bierling,  "Kleine  Beitrage,"  ibid.,  XVI,  288-316  (1881).  In  this  con- 
nection read  also  Hasse,  Das  Giiterrecht  der  Ehegattin  (Berlin,  1824), 
who  anticipates  Sohm  on  the  nature  of  the  Roman  nuptial  celebration; 
Cremer,  Die  kirchliche  Trauung  (Berlin,  1875);  idem,  "Biirgerliche 
Eheschliessung  und  kirchliche  Trauung,"  in  Evangel.  Kirchenzeitung 
(1876j,  Nos.  32-35;  Lindner,  "Die  Heiligung  der  Ehe  und  die  Trauung," 
ibid.,  Nos.  18-23;  Buchka,  "Die  Bedeutung  der  kirch.  Trauung," 
ZKR.,  XVII  (Freiburg  and  Tubingen,  1882);  Kahl,  "Civilehe  und 
kirch.  Gewissen,"  ibid.,  XVIII,  295-367  (1883);  Freisen,  Geschichte  des 
eanonischen  Eherechts  (Tubingen,  1888). 

Friedberg's  Eheschliessung,  supplemented  by  the  Zur  Geschichte 
der  Eheschliessung,  the  Lehrbuch  des  katholischen  und  evangelischen 
Kirchenrechts  (2d  ed.  Leipzig,  1884),  and  the  Geschichte  der  Civilehe 
(Berlin,  1877),  is  a  mine  of  information  at  every  point;  and  his  conclu- 
sions as  to  the  validity  of  clandestine  contracts  de  praesenti  have  been 
accepted  by  Pollock  and  Maitland  in  their  History  of  English  Law 
(Cambridge,  1895).  Mako  wer's  Constitutional  History  and  Constitution 
of  the  Church  of  England  (London,  1895)  is  by  far  the  best  work  on  his 
subject,  the  extracts  from  the  sources  and  the  full  bibliographical  ap- 
paratus being  of  the  greatest  assistance  to  the  investigator. 

In  spite  of  its  notorious  inaccuracy,  Bingham's  Origines  ecclesi- 
asticae  (London,  n.  d.)  is  still  of  service.  Conservative  discussions  may 
also  be  found  in  Goschl,  Darstellung  der  kirch.-christ.  Ehegesetze 
(Aschaffenburg,  1832);  Hildebrand,  De  nu2)tiis  veterum  christianorum 
(Helmstadt,  1701);  Moy,  Eherecht  der  Christen  mentioned  above;  and 
Phillips,  Lehrbuch  des  Kirchenrechts  (3d  ed.,  Regensburg,  1881 ).  Zhish- 
man's  Das  Eherecht  der  orientalischen  Kirche  (Vienna,  1864)  is  the 
standard  treatise  on  the  subject. 


KisE  OF  Ecclesiastical  Marriage  291 

In  general,  besides  the  works  of  Beauchet,  Loening,  Spirgatis, 
M^ril,  Lingard,  Schmid,  Thorpe,  Liebermann,  and  others  already  men- 
tioned in  Bibliographical  Note  VI,  some  useful  matter  for  the  present 
chapter  may  be  found  in  Parker,  De  antiquitate  britannicae  ecclesiae 
(London,  1729);  Klein,  Das  Eheverlobniss  (Strassburg,  1881);  Riedler, 
Bedingte  Eheschliessung  (Kempten,  1892);  Freisen,  Geschichte  des 
canonischen  Eherechts  (Tubingen,  1888);  idem,  in  Archiv  fiir  katho- 
lisches  Kirchenrecht,  LIII,  369  flf.] 

I.     THE  PRIMITIVE   CHRISTIAN   BENEDICTION,  THE  BRIDE-MASS, 
AND    THE    CELEBRATION  AD  OSTIUM  ECCLESIAE 

It  is  a  noteworthy  fact  that  the  early  church  accepted  and 
sanctioned  the  existing  temporal  forms  of  marriage.  Her 
energy  was  directed  mainly  to  the  task  of  enforcing  her  own 
rules  relating  to  marriage  disabilities,  such  as  those  arising 
in  affinity  or  nearness  of  kin;  to  devising  restraints  upon 
the  freedom  of  divorce  and  second  marriage ;  and  to  admin- 
istering matrimonial  judicature.'  But  the  existing  legal 
character  and  the  popular  forms  of  betrothal  and  nuptials 
were  not  disturbed.  During  the  period  preceding  the  Teu- 
tonic invasion,  speaking  broadly,  the  church  adhered  to  the 
Roman  law  and  custom;  thereafter  those  of  the  Germans, 
even  when  the  marriage  consisted  in  the  formal  sale  and 
tradition  of  the  bride,  were  accepted.^  The  betrothal  of  the 
early  canon  law  is,  therefore,  the  Roman  betrothal.  It  is  a 
consensus  sponsalitius,  or  free  agreement  between  the  man 
and  the  woman.     Legally  it  is  a  pactum  de  contrahendo,  or 

1  LiNGAED,  Hist,  of  Anglo-Saxon  Church,  II,  5-7 ;  Feiedbeeg,  Eheschliessung,  7 ; 
SoHM,  Eheschliessung,  107,  and  chap,  iv;  Scheuel,  Das  gemeine  deutsche  Eherecht, 
14,  15. 

2  SoHM,  op.  cit.,  108  ff.  That  the  church  adopted  the  Roman  marriage  forms  is 
the  generally  accepted  view :  see  Sehling,  Unterscheidung  der  VerlObnisse,  24  tf . ; 
ScHUBEET,  Die  evangel.  Trauung,  4  ff. ;  Scheuel,  Entwicklung  des  kirch.  Eheschlies- 
sungsrechts,  8  ff. ;  idem,  "  Consensus  facit  nuptias,"  ZKR.,  XXII,  269  ff. ;  Bienee, 
"Beitrage,"i6id.,  XX,  119, 120;  Richtee-Dove-Kahl,  ie/irftwcA,  1029, 1030 ;  Loening, 
Gesch.  des  deutsch.  Kirchenrechts,  II,  569  ff. ;  Dieckhoff,  Kirchliche  Trauung,  12  ff . ; 
MOY,  Eherecht  der  Christen,  94  ff.,  215  ff.,  372  ff. 

On  the  other  hand,  Feeisen,  in  Archiv  fiir  kath.  Kirchenrecht,  LIII,  369  S., 
holds  that  the  early  Christians  followed  mainly  Jewish  custom.  Cf.  idem,  Geschichte 
des  canon.  Eherechts,  120  ff. 


292  Matrimonial  Institutions 

promise  for  future  joining  in  marriage,  which  may  be  dis- 
solved at  the  pleasure  of  either  party.'  It  creates  no  obliga- 
tion which  can  give  rise  to  action  for  damage  or  fulfilment.^ 
It  does  not  constitute  even  the  initiation  of  marriage.  The 
marriage  begins  with  the  nuptials  or  actual  wedded  life, 
which  gives  expression  to  the  consensus  nuptialis,  or  mutual 
will  of  the  parties  to  be  husband  and  wife  ;*  though,  doubtless, 
the  church  demands  parental  consent,  without  making  it 
absolutely  essential.*  On  the  other  hand,  it  has  been  demon- 
strated by  Sohm,  contrary  to  the  view  previously  accepted, 

1  Dig.,  xxiii,  tit.  i,  1 :  "  Sponsalia  sunt  mentio  et  repromissio  nuptiarum  futura- 
rum."  —  Corpus  juris  civ.,  I,  294.  Cf.  Sohm,  Eheschliessung,  109, 110;  Klein,  Das  Ehe- 
verlObniss,  122  ff. 

2  By  the  older  Roman  law  the  betrotha^  was  in  form  a  contract  by  stipulatio, 
and  there  was  an  action  for  damage  in  case  of  nonfnlfilment :  Gellius,  Nodes 
atticae,  iv,  4 ;  Smith,  Diet,  of  Greek  and  Roman  Antiquities,  II,  139, 140.  The  later 
law  gave  no  such  action:  Dig.,  xxiii,  tit.  i,  10:  Corpus  juris  civ.,  I,  291;  Codex,  V,  5; 
though  to  enter  into  two  bethrothals  at  once  was  held  to  constitute  infamia,  the 
same  as  two  marriages :  Dig.,  iii,  tit.  ii,  1 :  Corpus  juris  civ.,  I,  36.  Cf.  Ludlow, 
in  Diet.  Christ.  Antiq.,  I,  203;  Klein,  Das  EheverlObniss,  22  ff.,  125, 126;  Riedlee, 
Bedingte  Eheschliessung,  11, 12;  Scheuel,  Entwieklung,  9-11;  LoENiNG,  Geschichte 
des  deutsch.  Kirchenreehts,  II,  569,  570,  who  shows  that  after  the  third  century  the 
betrothal  became  more  important  in] Roman  law;  Sehling,  Unierscheidung,  20,  21, 
notes;  Rein,  Das  rOm.  Privatrecht,  188, 189;  Beissonius,  De  ritu  nuptiarum  (Paris, 
1654),  1  ff. ;  Beauchet,  Etude,  11  ff. ;  Schxjbekt,  Die  evangel.  Trauung,  11,  notes. 

3  But  Sohm,  Eheschliessung,  110,  who  was  preceded  by  GlUck,  Guterrecht,  1, 97  ff., 
contends,  against  the  common  interpretation  of  the  maxim  consensus  facit  nup- 
tias,  that  a  merely  "  formless"  consensus  not  followed  by  actual  wedded  life  is  not 
sufficient  to  constitute  a  Roman  marriage.  That  would  be  practically  a  consensus 
sponsalitius  or  Roman  betrothal.  On  the  other  hand,  Sehling,  Unierscheidung  der 
VerlObnisse,  7  ff.,  138  ff.,  157  ff.,  insists  that  by  the  Roman  law  a  formless  nuptial  con- 
tract, whether  followed  by  cohabitation  or  not,  constitutes  a  binding  marriage. 
Such  also  is  the  view  of  Dieckhoff,  Kirch.  Trauung,  15 ;  Schubeet,  Die  evangel. 
Trauung,  4ff.,  11 ;  and  Scheuel,  Entwicklung,  11.  But  Scheuel,  "Consensus  facit 
nuptias,"  ZKR.,  XXII,  269  ff.,  agrees  with  Sohm,  in  effect,  though  not  avowedly. 
For,  while  he  says  that  marriage  by  confarreatio,  for  example,  would  be  a  valid  mar- 
riage, even  if  the  parties  never  lived  together,  yet  the  Roman  law,  he  points  out, 
does  not  reveal  the  evils  of  clandestine  unions,  because  the  formless  nuptial  promise 
implied  the  common  wedded  life.  Cf.  also  Bieeling,  "  Kleine  BeitrSge,"  ZKR., 
XVI,  288  ff.,  who  criticises  Scheurl;  Feeisen,  Gesc7iJc7i(e  des  can.  Ehereehts,  101  ff. ; 
and  Rein,  Das  rOm.  Privatrecht  (1836),  188, 189. 

*  "For  even  on  earth  children  do  not  rightfully  and  lawfully  wed  without  their 
father's  consent." — Teetullian,  To  His  Wife,  Book  II,  c.  viii :  Ante-Nieene  Fathers, 
rV,  48.  According  to  Ulpian,  in  Dig.,  1,  tit.  xvii,  1.  30,  "Nuptias  non  concubitus, 
sed  consensus  facit."  But  Paulus,  ibid.,  xxiii,  tit.  ii,  1.  2,  shows  that  the  consensus 
"must  be  at  once  that  of  the  parties  themselves,  and  of  those  in  whose  potestas  they 
are."    See  the  excellent  article  of  Ludlow,  in  Diet.  Christ.  Antiq.,  I,  433-36. 


Rise  of  Ecclesiastical  Marriage  293 

that  the  two  betrothals  of  the  medisBval  canon  law  are  based 
on  the  German  betrothal.'  If  not  the  marriage  itself,  it  is 
nevertheless,  as  already  seen,  an  act  for  joining  in  marriage 
which  is  not  easily  dissolved. 

The  only  innovation  effected  by  the  primitive  church  was 
of  a  purely  religious  character.  Though  she  might  content 
herself  with  the  Roman  or  the  Germanic  forms  of  marriage, 
there  remained  an  "ethical  mission"  peculiarly  her  own. 
"  In  order  at  the  very  outset  to  fill  the  wedded  life  with  the 
blessing  and  spirit  of  the  Christian  life,  the  church,  without 
reference  to  the  matrimonial  law  in  force,  demanded  of  her 
members  that  the  very  beginning  of  marriage  should  be 
placed  under  the  word  of  God  and  be  hallowed  by  its 
power."  ^  Hence,  from  the  first  century  onward,  we  find 
evidence  of  a  priestly  benediction  usually  in  connection  with 
the  betrothal  and  probably  with  the  nuptials.^  Thus  Igna- 
tius declares  that  it  "becomes  both  men  and  women  who 
marry,  to  form  their  union  with  the  approval  of  the  bishop," 

1  SoHM,  Eheschliessung,  107-52;  idem,  Trauung  und  Verlobung,  58-109.  In  oppo-~ 
sition  to  Sohm's  view,  Sehling,  Unterscheidung  der  Verldbnisse,  138  ff.,  165  ff.,  con- 
tends that  the  sponsalia  (betrothal  and  nuptial  promises)  of  the  mediaeval  canon  law 
are  derived  from  the  law  of  Rome.  Such  also  is  the  position  of  Zoepfl,  Deutsche 
Bechtsgeschichte  (4th  ed.),  Ill,  §§  81  ff. ;  Schulte,  Handbuch  des  hath.  Eherechts 
(1855),  37,  278;  Waltee,  Kirchenrecht  (14th  ed.),  §  298;  and  Loening,  Gesch.  des 
deutsch.  Kirchenrechts,  II,  601,  following  Sohm  in  the  main.  Schubert,  Die  evangel. 
Trauung,  37,  takes  a  medial  position  :  "  die  Kirche  bildete  ihr  eigenes  Recht  in  Anleh- 
nung  andasdeutscheRechtaus."  ScBTiVRL,,  Entwicklung,  93,  9i,  95  S., passim;  idem, 
Das  gem,eine  deutsche  Eherecht,  14, 15,  reviews  and  criticises  Sohm  on  various  points. 
Feiedbeeg,  Verlobung  und  Trauung,  25,  contrary  to  the  position  taken  in  Eheschlies- 
sung, 6,  202,  accepts  Sohm's  view,  but  with  reservations.    See  also  his  Lehrbuch,  339  ff. 

2  Sohm,  Eheschliessung,  107, 108.  Cf.  idem,  Ob,  Civilehe,  25 ;  and  Schubert,  Die 
evangel.  Trauung,  5  ff.,  who  agrees  with  Sohm.  The  conservative  view  of  the  reli- 
gious character  of  early  Christian  marriage  is  represented  by  Klein,  EheverlGbniss, 
95  ff. ;  DlECKHOFF,  Die  kirch.  Trauung,  20  ff.,  passim. 

3  The  custom  of  benediction  may  have  been  influenced  by  Jewish  practice.  Tho 
Hebrew  benediction  was  given  "not  necessarily  by  a  priest,  but  by  the  eldest  friend 
or  relative  present":  Metrick,  in  Did.  Christ.  Antiq.,  II,  1107,  who  gives  the  bene- 
diction in  abridged  form.    Cf.  Selden,  Uxor  ebraica,  II,  12. 

On  the  teachings  of  the  Christian  fathers  as  to  the  form  of  marriage  see  Mae- 
tene,  De  ritibus,  II,  lib.  I,  c.  ix,  120-44;  Selden,  Uxor  ebraica,  179-84, 665-69,  pass/ni ; 
Schubert,  Die  evangel.  Trauung,  4  ff. ;  Loening,  Gesch.  des  deutsch  Kirchenrechts, 
II,  573  ff.;  DlECKHOFF,  Die  kirch.  Trauung,  20  ff.;  Feiedberg,  Lehrbuch,  337  ff.; 
Phillips,  Lehrbuch,  612  ff. ;  Bienee,  "  BeitrSge,"  ZKR.,  XX,  119-27. 


294  Matrimonial  Institutions 


that  it  may  be  according  to  God.'  Tertullian  speaks  of  mar- 
riage being  "requested"  of  bishops,  presbyters,  or  deacons;^ 
and  he  shows  in  another  place  that  publicity  was  an  impor- 
tant motive  for  encouraging  unions  "in  presence  of  the 
church.'"  In  a  somewhat  obscure  passage  of  the  treatise 
addressed  to  his  wife,  which  is  much  relied  upon  by  sacer- 
dotal writers,  he  exclaims:  "How  should  we  be  sufficient 
to  set  forth  the  bliss  of  that  marriage  which  the  church 
brings  about,  and  the  oblation  confirms,  and  the  benediction 
seals,  angels  proclaim,  the  Father  ratifies?"*  But  here  a 
legal  importance  is  given  to  the  benediction  which  it  does 
not  seem  to  have  gained  until  centuries  later. ^  A  similar 
doubt  attaches  to  the  words  of  Ambrose,  who,  writing 
against  mixed  marriages,  says  :  "For  since  marriage  itself 
should  be  sanctified  by  the  priestly  veil  and  by  benediction, 
how  can  that  be  called  a  marriage  where  there  is  no  agree- 
ment of  faith?"®  But,  "as  Selden  has  observed,  the  like 
benedictions  were  often  claimed  in  behalf  of  many  other 
kinds  of  contract  besides  that  of  marriage — a  sale,  for 
instance."^  In  the  eastern  church  likewise  the  letters  of 
Gregory  Nazienzen  and  the  silence  of  Chrysostom  show  that 
the  benediction  was  without  legal  significance.^  By  the 
Roman  law  no  betrothal  or  nuptial  ceremonial  is  prescribed. 
The  solemnities  were  determined  by  local  custom ;  and  these 
the  early  Christians  were  willing  to  accept.  For  centuries 
a  marriage  liturgy  was  not  adopted  either  in  the  East  or  in 

1  Ignatius,  Epistle  to  Polycarp,  IV :  Ante-Nicene  Fathers,  1, 95. 

2  Tektullian,  On  Monogamy,  xi :  Ante-Nicene  Fathers,  TV,  67. 

3  Tertullian,  On  Modesty,  v.  Ante-Nicene  Fathers,  IV,  77.  Cf.  Metbick,  art. 
"Marriage,"  in  Diet.  Christ.  Antiq.,  II,  1106,  who  thinks,  aside  from  the  religious 
motive,  members  might  thus  avoid  the  violation  of  laws  of  the  state  with  which  they 
were  unacquainted. 

*  Ludlow,  on  "  Benediction,"  in  Diet.  Christ.  Antiq.,  1, 193;  cf.  the  reading  in 
Ante-Nicene  Fathers,  IV,  48. 

5  Ludlow,  loc.  cit.  6  Ambkose,  Book  IX,  ep.  70;  Ludlow,  loc.  cit. 

7  Ludlow,  ibid. ;  Selden,  Uxor  ebraica,  Lib.  II,  cc.  xxiv,  xxv. 

8  Ludlow,  op.  cit.,  1, 194. 


KiSE  OF  Ecclesiastical  Marriage  295 

the  West.^  According  to  Tertullian,  no  "breath  of  idolatry" 
attaches  even  to  the  lieathen  ceremonies  connected  with 
espousals,^  among  which  he  mentions  the  ring,  the  kiss,  the 
veil,  and  the  joining  of  hands.^  The  ring  came  more  and 
more  under  German  influence  to  be  used  as  an  ari'ha* 
Witnesses  were  required;  and  in  connection  with  the  nup- 
tials we  hear  also  of  the  "pomp"  or  procession  to  the  bride- 
groom's home,  and  the  "crowning"  of  the  bride  or  the 
wedded  pair,  usually  with  flowers.^ 

It  seems  probable,  then,  that  during  the  first  three  or    ( 
four  centuries  Christian  marriages  were  not  as  a  rule  cele- 
brated in  church.®     The  betrothal  or  nuptial   benediction    ' 

1  In  both  East  and  West,  between  the  sixth  and  seventh  centuries :  Ludlow,  ibid. 

2TEETULLIAN,  On  Idolatry,  xvi:  Ante-Nicene  Fathers,  III,  71.  Cf.  Ludlow,  on 
"Betrothal,"  op.  cit.,  I,  203. 

sTeetullian,  loc.  cit. ;  idem,  On  the  Veiling  of  Virgins,  xi :  Ante-Nicene  Fathers, 
III,  71 ;  IV,  34.  On  the  ring  see  Diet.  Christ.  Antiq.,  I,  248,  249,  202 ;  II,  1105,  1807, 1808 ; 
for  the  kiss  see  ibid.,  II,  905,  906.  By  the  Theodosian  Code,  lib.  v,  tit.  3,  leg.  16,  one- 
half  of  the  bridegroom's  gifts,  after  his  death,  were  delivered  to  his  betrothed  in 
case  the  betrothal  were  sealed  by  a  kiss ;  otherwise  all  was  given  to  his  relatives : 
ibid.,  II,  1110.  In  England,  and  elsewhere,  the  kiss  was  a  characteristic  of  public 
spousals ;  and  when  these  were  recognized  by  the  church  the  kiss  was  sanctified  by 
the  priest:  Jeaffeeson,  Brides  and  Bridals,  I,  65-67;  Beand,  Pop.  Antiq.,  II,  139-41. 
Cf.  also  M^EiL,  Des  formes  et  des  usages,  37,  38;  Spiegatis,  Verlobung  und  Vermdh- 
lung,  16, 17,  The  veil  was  originally  used  at  the  betrothal,  from  the  time  of  which 
ceremony  onward  in  early  days  it  was  worn  habitually  by  the  betrothed  as  well  as 
by  the  married  woman:  Meyeick,  in  Diet.  Christ.  Antiq.,  II,  1108, 1109. 

*  Ludlow,  on  "Arrhae,"  in  Diet.  Christ.  Antiq.,  1, 142-44:  Meyeick,  ibid.,  II,  1105. 

5  For  the  crowning  in  the  eastern  church  see  Zhishman,  Das  Ehereeht  der  orient. 
Kirche,  135, 156,  692  ff. ;  cf.  Maetene,  De  ritibus,  I,  125.  The  crown  was  made  of  flow- 
ers, often  of  olive  or  myrtle,  and  sometimes  of  silver  or  gold.  The  custom  appears  in 
the  West,  but  it  became  at  length  so  important  in  the  East  that  the  "  whole  marriage 
was  called  the  crowning,  as  in  the  West  it  was  called  the  veiling":  Meyrick,  in 
Diet.  Christ.  Antiq.,  II,  1108, 1109;  cf.  ibid.,  I,  511.  The  pomp  is,  of  course,  the  Greek 
pompa:  Fustel  de  Coulangks,  Ancieiit  City  (Boston,  1896),  55  ff.,  corresponding  to 
the  Roman  traductio  and  the  German  Brautlauf. 

6  Pope  Nicholas  (A.  D.  860),  in  his  replies  to  the  Bulgarians,  who  had  asked  his 
counsel  concerning  marriage  rites,  says  concerning  the  nuptials :  "  First  of  all  they 
are  placed  in  the  church  with  oblations,  which  they  have  to  make  to  God  by  the 
hands  of  the  priest,  and  so  at  last  they  receive  the  benediction  and  the  heavenly 
veil."  On  this  letter  see  Selden,  Uxor  ebraica.  Lib.  II,  c.  xxv,  179;  Maetene,  De 
ritibus,  1, 124, 125 ;  Dieckhoff,  Die  kirch.  Trauung,  47  ff . ;  Beauchet,  £tude,  34.  From 
this  letter  and  the  statements  of  the  Fathers  concerning  the  benediction,  already 
mentioned,  Meyeick,  in  Diet.  Christ.  Antiq.,  II,  1106, 1107,  concludes,  "There  is  no 
reasonable  doubt  that  the  place  in  which  Christians  were  ordinarily  married  was  a 
choich,  so  soon  as  it  became  safe  and  customary  for  them  to  meet  in  churches  for 


296  Matrimonial  Institutions 

was  not  essential  to  a  valid  marriage,  however  important  it 
may  have  been  regarded  from  a  religious  point  of  view.* 
Gradually  it  became  an  established  custom  for  the  newly 
wedded  pair,  after  solemnization  of  the  nuptials,  to  attend 
religious  services  in  the  church  and  partake  of  the  sacra- 
ment, at  the  close  of  which  the  priest  invoked  a  blessing 
upon  the  future  married  life.  But  at  first  the  church  ser- 
vice was  the  ordinary  service;  only  after  a  considerable 
interval  were  phrases  introduced  into  the  prayers  especially 
applicable  to  the  wedded  pair.^ 

Thus  stood  the  custom  in  the  period  immediately  follow- 
ing the  conversion  of  the  Teutonic  nations.  The  nuptials 
consisted  of  two  distinct  acts.  The  first  was  the  gifta,  or 
traditional  ceremony  in  the  usual  form.  Thereafter,  often 
on  the  day  following  the  bridal  night,'  the  newly  wedded 
couple  celebrated  the  bride-mass  (Brautmesse)  and  received 
the  benediction  of  the  priest.     But  this  religious  act  had 

religious  purposes,  and  that  the  way  in  which  they  were  ordinarily  married  was  by 
a  religious  ceremony,"  though  especially  in  the  East  (Chetsostom,  Horn,  xlviii,  in 
Gen.,  c.  24)  the  religious  ceremony  often  took  place  in  houses.  But  so  far  as  western 
Christendom  is  concerned,  the  sources  show  that  marriage  in  church  was  of  slow 
growth.  Jeaffreson,  Brides  and  Bridals,  I,  48,  49,  doubts  whether  the  Anglo- 
Saxons  always  celebrated  marriage  in  their  homes. 

1  SoHM,  Eheschliessung,  153  fif.,  insists  that  the  priestly  benediction,  unless  here 
and  there  by  local  custom,  was  connected  with  the  nuptials  (Trauung)  and  not  with 
the  betrothal,  which  he  regards  as  the  essential  element  in  marriage.  But  DlECK- 
HOFF,  Die  Jcirch,  Trauung,  20  fE.,  30  ff.,  47  ff.,  65  £E.,  claims  that  from  the  earliest  period 
among  the  Christians  it  was  customary  for  the  priest  to  bless  the  betrothal;  and 
that  at  least  from  the  fourth  century  the  same  is  true  of  the  nuptials.  In  his  Zur 
Trauungsfrage,  17,  note,  Sohm  seems  to  accept  Dieckhoff's  view,  while  denying  any- 
thing but  religious  meaning  to  the  benediction  in  either  case. 

SiEicius,  Epist.  ad  Himer.,  §4,  mentions  a  "benediction  of  the  priest  at  be- 
trothal, of  so  solemn  a  nature  as  to  make  it  sacrilege  in  the  betrothed  woman  to 
marry  another  man;"  but  this  epistle  maybe  spurious:  Meyeick,  in  Diet.  Christ. 
Antiq.,  11,  110&.  Cf.  ScHEVRi,,  EntivicJclung,  2i,  Zo;  Sehling,  Unterscheidung,  25, 
notes,  110;  Loening,  op.  cit.,  11,  513;  and,  for  the  eastern  church,  Zhishman,  Das 
Ehereeht  der  orient.  Kirche,  126, 135, 156,  672,  289  ff.,  passim. 

2  Sohm,  Eheschliessung,  157.  This  stage  of  the  bride-mass  is  disclosed  by  the 
oldest  sacramentaria,  of  about  the  fifth  century;  and  the  same  ritual  was  in  use  in 
the  Frankish  church  in  the  ninth  century. 

3  Fri'evberg,  Eheschliessung,  18-93,  wheTe  numerous  proofs  from  the  mediaeval 
poets  and  other  sources  are  given ;  but  sometimes  marriage  in  church  appears.  Qf. 
Sohm,  op.  cit.,  159  n.  16. 


KiSE  OF  Ecclesiastical  Marriage  297 

no  legal  significance.  No  doubt  it  was  performed  by  all 
good  Christians  as  a  religious  duty.  The  benediction  was 
invoked  on  the  married  life,  a  fact  of  such  immense  ethical 
importance,  just  as  it  was  invoked  on  all  important  under- 
takings. It  was  observed  as  a  fitting  solemnity  for  a  believer 
and  not  as  a  part  of  the  marriage.  Therefore  in  the  case  of 
second  marriages  it  was  omitted.'  Broadly  stated,  the  canon 
law  maintained  the  validity  of  all  proper  marriages  solem- 
nized without  the  priestly  benediction,  though  spiritual 
punishment  might  be  imposed  for  neglect  of  religious  duty. 
Such  is  the  view  of  Sohm,  and  it  has  been  generally  ac- 
cepted.^ Dieckhoff,^  however,  contests  it  at  every  point.  He 
holds  that  from  early  days  the  priestly  benediction,  whether 
of  betrothal  or  of  nuptials,  was  an  essential  part  of  the 
Christian  marriage  celebration.  In  support  of  the  theory, 
that  originally  the  church  really  undertook  to  join  persons 
in  wedlock,  he  presents  three  services  from  Roman  sacra- 

1  In  all  the  early  rituals  the  benediction  is  not  allowed  in  case  of  a  second  mar- 
riage, at  any  rate  unless  the  first  marriage  of  one  or  both  of  the  parties  had  not 
been  blessed  by  the  priest ;  and  long  paragraphs  of  the  service  are  devoted  to 
explaining  the  alleged  reasons  for  this,  and  to  the  still  harder  task  of  showing  how 
a  second  marriage  can  be  a  sacrament  and  yet  less  holy  than  a  first  marriage. 
This  dilemma  led  to  curious  compromises,  as  in  the  service  used  at  the  marriage  of 
King  Ethelwulf  with  Judith,  his  father's  widow,  in  the  year  856;  see  the  service  in 
Peetz,  Monumenta,  leg.,  I,  420;  and  Dieckhoff,  Die  kirch.  Trauung,  73,  74.  On  this 
topic  compare  the  York,  Sarum,  and  Hereford  rituals  in  Surtees  Society  Publica- 
tions, LXIII,  35-37,  Appendix,  23,  24, 117,  118;  and  the  Sarum  (Salisbury)  ritual  in 
Maskell,  Monumenta  ritualia,!,  71-74;  also  Rituale  romanum  Pauli  Quinti,  198; 
Maetene,  De  ritibus,  II,  121, 122;  Excerp.  Ecgberti,  91 :  in  Thorpe,  II,  110;  Aelfeic's 
Canons,  9:  ibid.,ll,Zil ;  Fkiedbeeg,  £^Aesc/iJtessMngr,  36;  Schmid,  Gesetee,  562 ;  Bohn, 
Pol.  Cyc,  III,  319.  Selden,  Uxor  ebraica,  II,  c.  30,  maintains  that  the  practice  of 
celebrating  nuptials  before  a  priest  was  not  general  among  primitive  Christians. 
This  is  declared  an  error  by  Bingham,  Origines,  VII,  328  ff.,  who,  like  Dieckhoff  and 
most  ecclesiastical  writers,  holds  that  the  custom  was  general  and  obligatory. 

2 Sohm,  Eheschliessung,  107  ff.,  153  ff. ;  idem,  Zur  Trauungsfrage,  10  ff. ;  idem,, 
Obligat.  Civilehe,  25  ff.  In  substantial  agreement  with  Sohm  are  Loening,  Gesch,  des 
deutsch.  Kirchenrechts,  II,  569-606:  Feiedbeeg,  "Zur  Geschichte,"  ZKR.,  I,  374  ff. ; 
Bienee,  "  Beitrage,"  ibid.,  XX,  119-47 ;  Schedel,  Entwicklung,  110  ff.  Cf.  Beadchet, 
i^tude,  30  ff . ;  Spiegatis,  Verlobung  und  Trauung,  4  ff. ;  Schdbeet,  Die  evangel. 
Trauung,  14  ff. ;  'Ki,lEFO'T:B.,Liturgische  Abhandlungen  {2d  ed.,1809),  1, 136  ff. 

3  Dieckhoff,  Die  kirch.  Trauung,  29  ff.,  45, 46  ff.,  65  ff. ;  idem,  Civilehe  und  kirch. 
Trauung,  14  ff.  Much  earlier,  MoY,  Eherecht  der  Christen,  216,  217,  had  taken  the 
same  view. 


298  Matrimonial  Institutions 


mentaria  of  the  age  of  Charles  the  Great.'  But  it  is  by  no 
means  certain  that  the  words  of  the  text  relied  upon  for 
proof  are  not  of  too  recent  origin  to  be  convincing  as  to 
early  usage ;  and  if  they  really  belong  to  the  time  assigned, 
they  cannot,  in  face  of  other  evidence,  be  accepted  as  show- 
ing the  general  custom  of  the  West,  but  rather,  like  the 
often-cited  Capitulary,^  of  802,  as  merely  revealing  the  aim 
and  desire  of  the  church. 

The  introduction  of  the  bride-mass  constitutes  the  second 
stage  in  the  history  of  clerical  marriage.  In  English  his- 
tory it  is  represented  by  several  spousal  services  which  have 
been  published  by  the  Surtees  Society.^  They  cover  the 
period  from  the  eighth  to  the  eleventh  century,  beginning 
with  the  Pontifical  of  Egbert,  archbishop  of  York  (732-66) 
and  ending  with  the  Rede  Boke  of  Darby e  [ca.  1050),  now 
in  the  library  of  Corpus  Christi  College,  Cambridge.  These 
services  consist  wholly  of  prayers  and  benedictions.  There 
is  no  mention  of  the  mass,  though  doubtless  the  husband 
and  wife  have  already  partaken  of  the  communion  before 
the  service.  Apparently  the  function  of  the  priest  is  purely 
religious.  It  is  merely  an  invocation  of  the  divine  blessing 
upon  the  life  of  the  newly  wedded  pair,  and  has  no  legal 
significance.  The  nuptials  have  already  been  solemnized, 
whether  in  the  presence  of  the  priest  or  not  the  formularies 
do  not  explain. 

1  DiECKHOFF,  Die  kirch.  Trauung,  35  ff. :  sacramentaria  of  Popes  Leo,  Gelasius, 
and  Gregory  I.  These,  he  thinks,  show  not  merely  a  "divine  benediction  of  the 
marriage  already  concluded,  but  essentially  a  divine  joining  in  marriage."  These 
services  are  also  contained  in  Daniel,  Codex  Uturgicus,  I,  257  ff. ;  and  that  of 
Gelasius  in  Martene,  De  ritibus,  II,  127. 

2  Charles  the  Great  in  the  Capitulary  of  802,  c.  35,  Walter,  Corpus  juris  germ., 
II,  167,  prescribes  the  benediction  of  the  nuptials  by  a  priest;  but  this  is  thought  to 
have  had  little  effect.  The  benediction  is  also  required  by  several  false  capitularies : 
Feiedbeeg,  Eheschliessung,  58,  59.  On  this  decree  of  802  see  also  Schtjbeet,  Die 
evangel.  Trauung,  19 ;  Beauchet,  JS:tude,  30,  31. 

3  Surtees  Society  Publications,  LXIII,  Appendix,  157  ff.  In  the  Ordo  of  Arch- 
bishop Egbert,  for  instance,  a  blessing  is  invoked  upon  the  parties,  the  bridal 
chamber,  and  the  marriage  bed ;  and  the  other  Ordines  there  printed  are  of  the  same 
general  character. 


EiSE  OP  Ecclesiastical  Marriage  299 

But  already  in  the  tenth  century  we  reach  the  beginning 
of  a  third  stage  in  the  rise  of  the  ecclesiastical  ceremony.' 
The  nuptials  still  consist  of  two  distinct  acts.  The  first  is 
the  gifta  proper,  according  to  the  usual  temporal  forms.  It 
is  no  longer  a  strictly  private  transaction,"  but  it  takes  place 
before  the  church  door — ante  ostium  ecclesiae^ — in  the  pres- 
ence of  the  priest,  who  participates  in  the  ceremony  and  closes 
it  with  his  blessing.  The  second  act  consists  in  the  entrance 
into  the  church  and  the  celebration  of  the  bride-mass,  fol- 
lowed by  a  second  benediction.  But  the  gifta,  even  in  this 
stage,  is  temporal  and  not  ecclesiastical.  It  occurs  "before 
and  not  within  the  church,"  the  motive  usually  assigned 
being  to  induce  an  immediate  attendance  upon  communion 
on  the  very  day  of  the  nuptials  instead  of  after  an  interval. 
In  reality,  however,  the  custom  is  but  a  recognition  of  the 
temporal  nature  of  wedlock,  which  ought  therefore  to  be 
celebrated  before  and  not  within  the  consecrated  building.* 
That  such  was  the  prevailing  custom  throughout  the  western 
church  during  the  Middle  Ages  is  established  by  a  mass  of 
evidence  of  the  most  convincing  character.  Besides  the 
testimony  of  chroniclers,  historians,  and  literary  men,  we 
have  that  of  the  law-books  and  legal  writers,  lay  and  ecclesi- 
astical, which  make  frequent  mention  of  the  assignment  of 
the  wife's  dower  at  the  church  door  during  the  nuptial  cele- 

1  It  need  not  surprise  us  that  these  phases  of  evolution  chronologically  overlap 
each  other ;  for  social  development  is  seldom  uniform. 

^  Haustrauung :  Sohm,  Eheschliessung,  158. 

3  Also  ad  valvas  ecclesiae,  in  facie  ecclesiae,  in  conspectu  ecclesiae,  ad  fores 
ecclesiae,  etc. 

*"By  performing  the  civil  rite  outside  the  walls  of  the  church  they  declared 
the  fundamental  nature  of  the  matrimonial  contract,  and  asserted  the  doctrine  of 
the  common  law  of  the  land  respecting  its  meaning  and  purpose."— Jeaffeeson, 
Brides  and  Bridals,  I,  53.  This  view  is  of  course  rejected  by  Dieckhoff,  Die  kirch. 
Trauung,  76,  note,  79  ff.,  who  regards  the  ecclesiastical  transaction  as  a  real  ecclesi- 
astical celebration  necessary  to  the  marriage  in  the  eyes  of  the  church.  Cf.  Biee- 
LiNG,  "  Kleine  BeitrSge,"  ZKR.,  XVI,  288  £E.,  who  criticises  Dieckhoff  (Civilehe  und 
kirch.  Trauung),  and  agrees  with  Sohm  (Zwr  Trauungsfrage,  10)  that  the  ecclesi- 
astical transaction  must  not  be  confusqd  with  ecclesiastical  marriage. 


300  Matrimonial  Institutions 

bratioii.'  Moreover,  many  of  the  ancient  rituals  themselves 
have  been  preserved.  All  these  "are  unanimous,"  says 
L6on  Gautier,  following  Martene,  "in  placing  the  principal 
act  of  the  marriage  celebration,  that  is  to  say  the  consent  of 
the  parties,  at  the  entrance  or  in  the  porch  of  the  church;"^ 

1  GLANViiiLE,  Tractatus,  lib.  vi,  c.  1 :  Phillips,  II,  381.  "  The  term  dower  is 
used  in  two  senses.  Dower  in  the  sense  in  which  it  is  commonly  used  means  that 
which  any  free  man  at  the  time  of  his  being  affianced  (tempore  desponsationis)  gives 
to  his  bride  at  the  church  door  " :  Glanville,  vi,  c.  1,  as  translated  by  John  Beames 
(London,  1812).  Cf.  also  Selden,  Fleta,  lib.  v,  c.  23,  pp.  340,  341;  Bracton,  De 
legihus,  lib,  ii,  c.  39  (fol.  92),  Vol.  II,  48;  Hoene,  The  Mirror  of  Justices  (ed. 
Whittakee,  London,  1895),  11;  Fitzheebert,  New  Natura  Brevium  (Dublin,  1793), 
352  (150);  Hengham,  Sunima  parva,c.  ii:  "  Brevia  de  dote  ad  ostium  ecclesiae;" 
Selden,  Uxor  ebraica,  198,  or  in  Opera,  III,  680. 

That  the  gifta,  or  celebration  as  a  temporal  act,  should  take  place  before  the 
church  door  is  thoroughly  in  harmony  with  the  early  view  that  there  purification  or 
preparation  should  be  made  for  the  rites  or  service  within  the  sanctuary.  The 
atrium  sometimes  seems  to  be  regarded  as  tae  medial  ground  between  the  world  on 
the  one  hand  and  the  sacred  temple  of  God  on  the  other;  see,  for  example.  Old  Eng, 
Homilies,  I,  72,  73:  children  are  to  be  baptized  in  holy  church,  "  and  their  godfathers 
and  godmothers  are  to  answer  for  them  at  the  church-door,  and  enter  into  pledges 
(covenants)  at  the  font-stone,  that  they  should  be  believing  (faithful)  men."  This 
passage  is  referred  to  in  Matznee,  Altenglisch.  Sprachprohen  (Berlin,  1878),  II,  578, 
at  "  chirchedure."  Geegoey,  in  his  Pastoral  Care,  104, 105,  referring  to  the  brazen 
basins  before  the  Temple  supported  by  twelve  oxen,  says  the  bishops  when  they 
"descend  to  wash  the  sins  of  their  neighbors,  when  they  confess,  they  support,  as  it 
were,  the  basin  before  the  church-door."  According  to  the  Capitula  et  fragmenta 
Theodori,  Thoepe,  Ancient  Laws  (folio),  313,  "Si  in  atrio  ecclesiae  quislibet 
injuriaverit  aliquem  presbyterum,  vel  ibidem  aliquod  sacrilegium  perpetraverit, 
altari  et  Domino  componatur."  With  this  compare  ^theleed,  Latvs,  VII,  13: 
Thoepe,  Ancient  Laws  (folio),  142;  Grimm,  WGrterbuch,  s.v.  "Kirchthor;"  Murray, 
New  Eng.  Diet.,  Part  V,  406,  at  "church-door;"  Ormulum,  I,  43,11.  1326,  1327; 
Chaucer,  Prolog.,  460:  "  Housbondes  at  chirche  dore  she  hadde  fyve."  See  also 
WaenkOnig  and  Stein,  Franzdsische  Verfassungsgeschichte,  II,  257;  Weinhold, 
Deutsche  Frauen,  I,  377,  378;  Whitgift,  Works,  II,  461-64;  Beand,  Pop.  Ant.,  II, 
133-.35;  Jeaffeeson,  Brides  and  Bridals,  I,  46-59;  Spiegatis,  Verlobung  und 
Trauung,  20,  21 ;  Schubert,  Die  evangel.  Trauung,  20. 

2L:fiON  Gautiee,  La  chevalerie,  424  n.  3:  ap.  Maetene,  De  ritibv^,  v/ho  says: 
"Nuptiao  communiter  solent  celebrari  ad  valvas  ecclesiae;"  and  places  before  us 
abundant  proof  in  the  sixteen  ordines  which  he  publishes,  ibid.,  II,  127-44.  Gautier 
cites  also  ^tiennb  de  Bouebon,  ed.  of  Lecoy  de  la  Maeche,  366:  "Cum 
duceretur  ....  ad  parrochiam  .  ,  .  .  et  esset  sub  porticu  ecclesiae  ut  sponsa  sua  ei 
consentiret  et  matrimonium  ratificaretur  per  verba  de  praesenti,  ut  moris  est,  et  sic 
in  ecclesia  matrimonium  solempnizaretur  in  misse  celebratione  et  aliis."  The  same 
writer  makes  a  thorough  examination  of  the  "  Pontifical  ou  rituel  de  lire  "  (pub- 
lished by  Maetene,  II,  coll.  356-59,  who  assigns  it  to  the  twelfth  century) ,  comparing 
it  with  other  rituals,  with  illustrations  and  proofs  from  many  sources.  In  chaps, 
ix  to  xi  inclusive,  entitled  "  Le  mariage  du  chevalier  "  [op.  cit.,  341-450) ,  Gautier  gives 
a  learned  and  most  interesting  discussion  of  mediseval  marriage  rites  and  customs, 
Compare  Daniel,  Codex  Uturgicus;  and  the  summaries  in  Palmee,  Origines 
liturgicae,  I,  106  fE. 


KisE  OF  Ecclesiastical  Marriage  301 

and  what  is  thus  affirmed  for  the  rituals  of  France  is  equally 
true  for  those  of  Germany*  and  England.  "In  the  first 
place,"  runs  the  opening  rubric  of  the  Sarum  Ordo  ad 
faciendum  sponsalia,  "let  the  man  and  the  woman  stand 
before  the  church  door  in  the  presence  of  God,  the  priest, 
and  the  people,  the  man  on  the  right  of  the  woman,  and  the 
woman  on  the  left  of  the  man."  Here  the  bride  and  groom 
remain  during  the  nuptial  celebration,  the  assignment  of  the 
dower,  and  the  closing  benediction.  Thereupon,  as  the  rubric 
directs,  "let  them  enter  the  church  as  far  as  the  steps  of  the 
altar,"  where,  after  a  psalm,  they  are  to  prostrate  themselves 
while  a  prayer  is  said  in  their  behalf,^  The  usage  of  Sarum 
in  this  regard  is  typical,  diflPering  only  in  words  and  arrange- 
ment from  that  of  York,  Hereford,  or  the  other  churches. 
Indeed,  marriage  continues  to  be  celebrated  at  the  church 
door  until  the  sixteenth  century,  the  liturgies  of  Edward 
VI.  and  Elizabeth  first  requiring  as  a  general  observance  the 
ceremony  to  be  performed  in  the  body  of  the  church.' 

iSee  SOHM,  Eheschliessung,  153-63;  and  Feiedberg,  Eheschliessung,  SI,  3Si,  who 
reach  this  conclusion  from  an  examination  of  the  various  English  and  continental 
rituals;  especially  the  ritual  of  Eennes,  ca.  eleventh  century,  in  Martene,  II,  127; 
also  SoHM,  op.  cit.,  159, 160;  Dieckhoff,  Die  kirch.  Trauung,  77,  78. 

2 "Manual  ad  usum  Sarum,"  in  Surtees  Society  Publications,  LXIII,  Appendix, 
17-20;  also  in  Maskell,  Monumenta  ritualia,  I,  50-77.  Compare  the  rituals  of  York, 
Hereford,  and  the  others  contained  in  Surtees  Society  Publications,  LXIII,  24  ff., 
115  ff.,  160  ff. ;  also  the  "  Eituel  de  lire  "  in  L^ON  Gautiee,  La  chevalerie,  424-31,  as 
summarized  in  capitals  in  the  margin;  and  the  ritual  of  Rennes  in  Martene,  De 
ritibus,  II,  127;  or  in  Sohm,  Eheschliessung,  159, 160:  "In  primis  veniat  sacerdos  ante 
ostium  ecclesiae  indutus  alba  atque  stola  cum  benedicta  aqua;  qua  aspersa,  inter- 
roget  eos  sapienter,  utrum  legaliter  copulari  velint,  et  quaerat  quomodo  parentes 
non  sint,  et  doceat  quomodo  simul  in  lege  Domini  vivere  debeant.  Deinde  faciat 
parentes  secuti  mos  est  dare  earn,  atque  sponsum  dotalitium  dividere,  cunctisque 

audientibus  legere,  ipsumque  suae  sponsae  libenter  dare Qua  finita,  intrando 

in  ecclesiam,  missam  incipiat,^''  etc. 

^Liturgy  of  Edward  VI.  (Parker  Society),  127;  Liturgy  of  Elizabeth  (Parker 
Society),  217.  Compare  Whitgift,  Defence  of  the  Answer,  II,  462,  where  he  defends 
the  requirement  of  the  "book,"  that  "persons  to  be  married  shall  come  into  the 
body  of  the  church,  with  their  friends  and  neighbours,  there  to  be  married,"  against 
Thomas  Caetweight  in  his  Reply  to  the  Answer,  105,  sec.  2,  wlio  ridicules  the  pre- 
scribed ceremonial.  "Likewise  for  marriage,"  says  Cartwright,  "he  (the  priest) 
Cometh  back  again  into  the  body  of  the  church,  and  for  baptism  unto  the  chnrch- 
door:  what  comeliness,  what  decency,  what  edifying  in  this?  Decency  (I  say)  in 
running  and  trudging  from  place  to  place:  edifying  in  standing  in  that  place,  and 
after  that  sort,  where  he  can  worst  be  heard  and  understanded." 


302  Matrimonial  Institutions 

One  of  the  very  earliest  references  to  the  presence  of  the 
priest  at  the  nuptials  is  contained  in  the  last  two  sections  of 
the  old  English  ritual  of  the  tenth  century  already  quoted 
in  part/  and  this  ritual  may  be  regarded  as  marking  the 
transition  to  the  period  under  consideration. 

"8.  At  the  nuptials  there  shall  be  a  mass-priest  by  law; 
who  shall  with  God's  blessing  bind  their  union  to  all  pros- 
perity. 

"9.  Well  is  it  also  to  be  looked  to,  that  it  be  known,  that 
they,  through  kinship,  be  not  too  nearly  allied;  lest  that  be 
afterwards  divided,  which  before  was  wrongly  joined."  ^ 

It  is  evident,  as  Friedberg  has  remarked,  that  the  office 
of  mass-priest  in  this  ritual  is  of  no  legal  significance.  The 
invocation  of  a  divine  blessing  is  merely  a  religious  act 
after  the  marriage  is  complete.^  It  is  no  more  a  part  of  the 
gifta  than  is  the  caution,  in  the  last  section,  against  mar- 
riage within  the  degrees  of  relationship  forbidden  by  the 
canons.  It  is  plain  that  in  this  formulary  the  betrothal  and 
not  the  nuptials  absorbs  well-nigh  the  whole  attention  of  the 
lawgiver.  It  is  manifestly  the  thing  of  deepest  concern; 
and  in  this  the  priest  has  no  part.* 

According  to  Lingard,  "there  is  no  trace  of  any  form  of 
marriage  contract  in  ancient  English  sacramentaries  pre- 
viously to  the  close  of  the  twelfth  century ;  and  the  earliest 
mention  of  it  appears  in  the  constitutions  of  two  English 
prelates,  Richard  Poere,  bishop  of  Sarum,  and  Richard  de 
Marisco,  bishop  of  Durham,  who  ordered  the  parish  priests 
to  teach  the  bridegroom  this  form,  'I  take  thee  N.  for  my 

1  This  is  next  to  the  oldest  mention,  after  the  Germanic  conquest,  of  the  priestly- 
benediction;  the  first  is  the  marriage  of  Judith  to  the  Saxon  king  ^thelwulf,  856, 
elsewhere  mentioned. 

2SCHMID,  ^inhang  VI,  392,  393:  Thoepe,  I,  255,  257. 

3  Feiedbeeg,  Eheschliessung,  35;  compare  Lingaed,  History  and  Antiquities  of 
the  Anglo-Saxon  Church,  II,  7-11,  who  gives  the  form  of  benediction. 

*  SOHM,  Eheschliessung,  100  n.  60.  This  view  is  of  course  opposed  by  DrECK- 
HOFF,  Die  kirch.  Trauung,  69  H'. 


Rise  of  Ecclesiastical  Marriage  303 

wife,'  and  the  bride  a  similar  form,  '  I  take  thee  N.  for  my 
husband.'"*  This  statement,  however,  may  now  require  some 
modification.  Judging  from  its  brevity  and  its  condensed, 
almost  crude,  diction,  the  ritual  published  by  the  Surtees 
Society  from  a  pontifical  in  the  library  of  Magdalen  College, 
Oxford,  may  have  originated  at  an  earlier  date  in  the  twelfth 
century;^  and  this  seems  all  the  more  probable,  for  French 
rituals,  in  which  the  priest  takes  a  leading  part  in  directing 
the  spousal  contract,  are  preserved  from  a  still  earlier  period.' 
However  this  may  be,  the  rituals  of  Sarum,  York,  and 
Hereford  are  among  the  most  ancient,  the  most  elaborate, 
and  the  most  instructive  which  have  anywhere  been  pre- 
served, those  of  Sarum  and  York  having  been  in  force  from 
about  the  end  of  the  twelfth  century  until  1549.  They 
contain  a  rich  store  of  material  for  the  student  of  the  mar- 
riage contract,  carrying  him  back  to  the  cradle  of  the  Eng- 
lish race  in  the  Saxon  forests.  Beneath  the  ecclesiastical 
covering,  the  adventitious  mass  of  prayers,  psalms,  and 
benedictions,  is  a  kernel  of  primitive  Teutonic  custom  which 
he  will  at  once  recognize. 

The  York  service  may  be  taken  as  a  type,  for  it  does 
not  differ  in  any  important  particular  from  the  other  two. 
In  it  the  advance  of  the  clergy  is  very  marked.  The 
priest  directs  or  participates  in  the  whole  procedure.  The 
ceremony  takes  place  before  the  church  door,  as  the  rubric 
directs,  the  man  standing  "on  the  right  of  the  woman  and 
the  woman  on  the  left  of  the  man."*     Then  the  priest  is 

iLiNGAED,  op.  cit.,  n,  10,  note;  ap.  Wilkins,  Cone.,  I,  582. 

2  Surtees  Society  Publications,  LXIII,  Appendix,  160, 161.  See  also  the  "  Bene- 
dictio  annuli,  sponsi  et  sponsae  "  from  the  Ely  Pontifical,  Cambridge  University 
library,  of  the  twelfth  century,  ibid.,  161, 162,  in  which  the  priest  leads  in  blessing 
the  ring,  assigning  the  dower,  and  directing  the  "giving"  of  the  woman.  It  is 
probably  a  part  of  a  very  early  ritual. 

3  See  the  rituals  of  Eennes,  ca.  eleventh  century,  and  de  lire,  twelfth  century, 
already  referred  to. 

*  "  Statuantur  vir  et  mulier  ante  ostium  ecclesiae  coram  Deo  ot  sacerdote  et 
populo,  vir  a  dextris  mulieris  et  mulier  a  sinistris  viri "  :  York  manual,  in  Surtees 


304  Matrimonial  Institutions 

to  ask  the  banns  in  the  mother-tongue,  following  the 
Latin  formula  prescribed  in  the  ritual,  jfirst  addressing  the 
people : 

*'  Lo,  bretheren,  we  are  comen  here  before  God  and  his 
angels  and  all  his  halowes,  in  the  face  and  presence  of  our 
moder  holy  Chyrche,  for  to  couple  and  to  knyt  these  two 
bodyes  togyder,  that  is  to  saye,  of  this  man  and  of  this 
woman,  that  they  be  from  this  tyme  forthe,  but  one  body 
and  two  soules  in  the  fayth  and  lawe  of  God  and  holy 
Chyrche,  for  to  deserue  everlastynge  lyfe  what  someuer  that 
they  have  done  here  before." 

"  I  charge  you  on  Goddes  behalf e  and  holy  Chirche,  that 
if  there  be  any  of  you  that  can  say  any  thynge  why  these 
two  may  not  lawfully  be  wedded  togyder  at  this  tyme,  say  it 
nowe  outher  pryuely  or  appertly,  in  helpynge  of  your  soules 
and  theirs  bothe." 

Secondly,  addressing  the  man  and  the  woman: 

"Also  I  charge  you  both  and  eyther  be  your  selfe,  as  ye 
wyll  answer  before  God  at  the  day  of  dome,  that  yf  there  be 
thynge  done  pryuely  or  openly,  betwene  yourselfe,  or  that 
ye  knowe  any  lawfull  lettyng  why  that  ye  may  nat  be  wed- 
ded togyder  at  thys  tyme,  say  it  nowe  or  we  do  any  more  to 
.this  mater."  ^ 

If  no  objection  to  the  marriage  is  made,  the  priest,  in 
several  long  paragraphs  of  the  service,  explains  the  canons 
relating  to  publication  of  banns,  the  times  when  the  eccle- 
siastical celebration  is  forbidden,  and  the  evils  growing  out 
of  clandestine  unions,  with  the  penalty  of  three  years'  sus- 

Society  Publications,  LXIII,  24.  Cf.  the  Sarum,  Hereford,  and  Welsh  rituals,  ibid.. 
Appendix,  17,  115, 167 ;  also  the  Sarum  ritual  in  Maskell,  I,  50.  All  these  place  the 
man  on  the  right  of  the  woman ;  but  in  "  one  MS.  Manual  of  Sarum  Use  (early  XVth 
century),"  the  woman  "stands  on  the  right  hand  of  the  man":  Hendeeson,  in 
preface  to  Surtees  Society  Publications,  LXIII,  xviii,  xix. 

1  Compare  the  similar  provisions,  in  more  archaic  words,  in  the  Salisbury 
manual  in  the  British  Museum :  Maskell,  Monumenta  ritualia,  I,  53-54,  margin ; 
and  the  Latin  form  there  given  in  the  text. 


Rise  of  Ecclesiastical  Marriage  305 

pension  from  office  for  the  priest  who  fails  to  prohibit  such 
marriages  in  his  parish.  Then  follows  the  essential  act,  the 
celebration  of  the  sponsalia.  This,  as  already  mentioned, 
is  in  two  distinct  parts.  The  first  part  is  the  repetition  of 
the  betrothal  per  verba  de  futuro.,  the  priest  putting  the 
vows  in  the  form  of  a  question  to  each  party.  He  says  to 
the  man: 

"iV^.,  wylt  thou  haue  this  woman  to  thy  wyfe  and  loue  her 
[and  wirschipe  hir']  and  keep  her,  in  sykenes  and  in  helthe, 
and  in  all  other  degrese  be  to  her  as  a  husbande  sholde  be 
to  his  wyfe,  and  all  other  forsake  for  her,  and  holde  the  only 
to  her  to  thy  lyues  ende." 

The  man  is  to  answer:  "I  wyll,"  The  priest  then  says 
to  the  woman: 

"  iV.,  wylt  thou  haue  this  man  to  thy  husbande,  and  to  be 
buxum  to  hym  [luf  hym,  obeye  to  him,  and  wirschipe^  hym], 
serue  hym  and  kepe  hym  in  sykenes  and  in  helthe:  and  in 
all  other  degrese  be  unto  him  as  a  wyfe  shulde  be  to  her 
husbande,  and  all  other  to  forsake  for  hym,  and  holde  the 
only  to  hym  to  thy  lyues  ende." 

The  woman  is  to  say:  "I  wyll." 

This  closes  the  first  part.  The  second  part  is  the  gifta, 
or  marriage  properly  so  called,  per  verba  de  praesenti.  The 
priest  says:  "Who  gyues  me  this  wyfe?"  "Then,"  runs  the 
Latin  rubric,  "shall  the  woman  be  given  away  by  her  father 
or  by  a  friend;  if  a  maid,  she  shall  have  her  hand  bare;  if 
a  widow,  she  shall  have  it  covered.^  The  man  shall  receive 
her  to  keep  in  God's  faith  and  his  own,  as  he  has  vowed 
before  the  priest;    and  holding  her  by  the  right  hand  with 

1  The  words  in  the  brackets  in  the  formulsB  for  both  parties  are  added  in  the 
Cambridge  MS.  of  the  York  ritual. 

2  It  will  be  noted  that  in  the  Cambridge  MS.  both  the  man  and  the  woman 
promise  to  "worship."  The  same  is  true  of  the  manuscript  Salisbury  ritual  in  the 
British  Museum:  Maskell,  op.  cit.,  I,  53. 

3  This  provision  is  found  in  all  these  early  rituals.  Cf.  Leon  Gautiee,  La 
chevalerie,  427,  note. 


306  Matrimonial  Institutions 

his  right  hand,  he  shall  plight  the  woman  his  troth  in  words 
of  the  present  tense,  saying  after  the  priest: 

"Here  I  take  thee  N.  to  my  wedded  wyfe,  to  haue  and 
to  holde,  at  bedde  and  at  horde,  for  fayrer  for  fouler,  for 
better  for  warse,  in  sekeness  and  in  hele,  tyl  dethe  us  departe, 
and  thereto  I  plyght  the  my  trouthe;"  and  the  woman  makes 
the  same  vow  in  the  same  words. 

"Then  shall  the  man  place  gold,  silver,  and  a  ring  upon 
a  shield  or  a  book.  And  the  priest  shall  enquire  whether 
the  ring  has  already  been  blessed."  If  not,  the  priest  is  to 
bless  it  in  prescribed  form,  and  sprinkle  it  with  holy  water. 
Then  follows  a  curious  ceremony.  The  bridegroom  "takes 
the  ring  with  his  three  principal  fingers,  and  says  after  the 
priest,  beginning  with  the  thumb  of  the  bride,  ^In  nomine 
Patris;''  at  the  second  finger,  ^et  Filii;'  at  the  third  finger, 
'e/  Spiritus  Sancti;^  at  the  fourth  or  middle  finger,  ^Amen;''^ 
and  there  he  leaves  the  ring,  because  according  to  the 
Decree  ....  'in  the  middle  finger  there  is  a  certain  vein 
extending  to  the  heart.'"  ^ 

After  this  delicious  bit  of  popular  superstition,  handed 
down  to  our  own  days  from  remote  antiquity,  the  bride- 
groom, holding  his  bride  by  the  hand,  says  after  the  priest: 
"With  this  rynge  I  wedde  the,  and  with  this  golde  and  siluer 
I  honoure  the,  and  with  this  gyft  I  dowe  thee." 
^  The  priest  next  "asks  the  dower  of  the  woman."    If  "land 

is  given  her  in  the  dower,"  the  bride  "prostrates  herself  at 
the  feet  of  the  bridegroom;"  but  the  York  ritual  does  not  go 

1  This  formula  is  common  to  the  early  rituals.  It  is  omitted  in  the  modern  ser- 
vice of  the  English  church,  but  retained  in  the  present  Roman  ritual :  Bingham 
The  Christian  Marriage  Ceremony,  180. 

2"Et  ibi  dimittat  annulum  secundum  decretum  xxx.  quaestione  v.  Feminae,  ad 
finem:  quia  in  medico  est  quaedam  vena  procedens  usque  ad  cor":  p.  27.  Cf. 
Geatian's  Decretum,  in  Richtee-Feiedbeeg,  Corpus  jur,  can.,  I.  The  "vein  ex- 
tending to  the  heart"  is  likewise  mentioned  in  the  rituals  of  Hereford  and  Sarum, 
and  in  the  Welsh  ritual  of  the  fifteenth  century.  The  Sarum  ritual  adds:  "et  in 
sonoritate  argenti  designatur  interna  dilectio,  quae  semper  inter  eos  debet  esse 
recens" :  Surtees  Society  Publications,  LXIII,  Appendix,  20. 


) 


Rise  of  Ecclesiastical  Marriage  807 

so  far  as  one  manuscript  of  the  Sarum  manual,  in  requiring  ^ 
that  the  woman  shall  "kiss  the  right  foot"  of  her  spouse.'       / 

The  ceremony  ends  with  prayer  and  benediction,  followed 
by  the  entrance  into  the  church  for  celebration  of  the  bridal 
mass.^ 

The  historical  significance  of  the  ritual  just  analyzed  is  \ 
readily  perceived.^     In  the  ring,  the  gold,  and  the  silver     | 
there  is  a  plain  recognition  of   the   arrha,   though   it    waB     / 
coming  to  be  regarded  as  a  kind  of  symbolical  assignment  of    ! 
the  wife's  dower.*     It  is  noticeable  that  the  tradition  is  still 
conducted  by  the  "father  or  a  friend."     It  is  a  private  lay 
transaction  in  which  the  priest  has  no  legal  part.     He  is  still 
a  mere  orator,  rather  than  a  necessary  actor,  though  there 
is  a  manifest  effort  to  gain  the  recognition  of  the  priestly 
oflSice  as  essential   to   a   Christian   marriage.     Martene  has 
pointed  out  that  in  all  the  early  rituals  the  words  vos  con- 

iThus  a  "MS.  Manual  of  Sarum  Use"  provides,  "whether  there  is  land  in  the 
doury  or  not":  "Tunc  procidat  sponsa  ante  pedes  ejus,  et  deosculetur  pedem  ejus 
dextrum;  tunc  erigat  earn  sponsus  "  :  Surtees  Society  Publications,  LXIII,  20,  note; 
and  Henderson,  ibid.,  xix.  On  the  York  and  Sarum  rituals  see  Selden,  Uxor 
ebraica,  193  ff. ;  and  the  points  discussed  are  all  illustrated  in  the  Ordines  published 
in  Martene. 

2  This  ritual  also  provides  a  form  for  the  priestly  blessing  of  the  bridal  chamber 
(benedictio  thalami)  and  the  nuptial  couch:  "  Nocte  vero  sequenti  cum  sponsus  et 
sponsa  ad  lectum  pervenerint,  accedat  Sacerdos  et  benedicat  thalamum ;  "  the  bless- 
ing concluding  with  the  direction :  "  Tunc  secundum  morem  antiquum  thurificentur 
torus  et  thalamus":  39,40.  Similar  forms  are  given  in  the  Hereford,  Sarum,  and 
Bangor  rituals :  Surtees  Society  Publications,  LXIII,  Appendix,  25,  26, 120 ;  Maseell, 
I,  76,  77  n.  47. 

3  For  a  good  summary  of  the  Sarum  and  other  rituals  see  Feiedbbrg,  Eheschlies- 
sung,  36  £f. ;  and  see  the  ceremonies  of  1502  and  1554,  in  the  "Gentlemen's  Magazine 
Library,"  Manners  and  Customs,  57. 

*  Thus  a  manuscript  manual  of  Salisbury  use  has  this  "curious  addition;"  the 
priest  says :  "Loo  this  gold  and  this  siluer  is  leyd  doun  in  signifyinge  that  the  woman 
schal  haue  hure  dower,  thi  goodes,  zif  heo  abide  aftur  thy  disces" :  fol.  17;  ap. 
Maskell,  Monumenta  ritualia,  I,  58  n.  14.  L:fiON  Gatjtieh  finds  in  the  similar 
French  custom  a  "reminiscence"  of  the  marriage  per  solidum  et  denarium  of  the 
Salic  law.  "When  the  bridegroom  pronounces  these  words:  'Dc  mon  bienje  vous 
doue,''  he  delicately  places  in  the  little  purse  of  the  bride  three  pretty  pieces  of 
money,  three  new  deniers.  Not  being  able  to  put  into  her  hands  the  fields,  woods, 
and  manors  constituting  the  dower,  he  gives  her  its  symbol.  They  went  so  far  on 
account  of  this  usage  as  to  coin  special  deniers,  'deniers  pour  espouser'":  La 
chevalerie,  428. 


308  Matrimonial  Institutions 

jungo^  are  unknown.  It  is  the  "parties  who  marry  them- 
selves." The  matrimonial  contract  arises  solely  in  their 
consent.^ 

II.       THE     PRIEST     SUPERSEDES     THE     CHOSEN     GUARDIAN,    AND 
SPONSALIA  PER  VERBA  DE  PRAESENTI   ARE    VALID 

Thus  it  appears  that  between  the  first  and  twelfth  cen- 
turies the  religious  element  in  the  marriage  ceremony  runs 
through  three  phases,  not  sharply  defined  by  dates,  but 
overlapping  and  blending;  and  for  the  sake  of  clearness  it 
may  be  well  to  summarize  the  history  of  this  development 
before  proceeding  farther.  (1)  During  about  four  centuries 
no  liturgy  was  prescribed ;  the  ancient  popular  forms  of  con- 
tract were  accepted ;  the  nuptials  were  usually  celebrated  in 
the  home  of  the  bride,  less  often  in  church ;  and  the  priestly 
benediction,  though  doubtless  commended  as  a  religious 
duty,  was  not  exacted  by  the  church  as  essential  to  a  legal 
or  a  canonical  marriage.  (2)  Between  about  the  end  of  the 
fourth  century  and  the  middle  of  the  tenth  the  custom  be- 
came well  established  for  the  newly  wedded  pair  to  attend 
religious  service  in  the  church  to  partake  of  the  sacrament 
and  receive  the  priestly  benediction  on  their  future  married 
life;  and  this  practice  soon  led  to  the  institution  of  the 
regular  bride-mass,  containing  phrases  directly  applicable  to 
the  nuptials.  In  the  bride-mass  may  be  found  the  genesis 
of  the  ecclesiastical  marriage  liturgy;  but  it  is  a  purely 
religious  office  and  adds  nothing  to  the  validity  of  the  private 
contract.  (3)  In  the  next  phase,  falling  between  the 
tenth  and  the  twelfth  centuries,  the  clergy  makes  rapid 
progress.    An  elaborate  and  imposing  ritual  is  developed ;  the 

1 "  I  pronounce  that  they  be  man  and  wife  together,  in  the  name  of  the  Father," 
etc. :  Eitual  of  the  English  church,  in  Bingham,  Christian  Marriage  Ceremony,  166. 
"I  join  you  together  in  marriage,"  etc.:  Roman  ritual,  ibid.,  178.  The  presence  of 
similar  phrases  in  all  our  modern  ceremonies,  civil  or  religious,  is  a  striking  proof 
of  the  essential  difference  between  the  function  of  the  magistrate  or  priest  now  and 
that  of  his  mediaeval  predecessor. 

2  L£oN  Gautiek,  La  chevalerie,  426  n.  1 ;  ap.  Maetene,  De  ritibus. 


Rise  of  Ecclesiastical  Marriage  309 

priest,  inheriting  the  functions  of  the  ancient  orator,  directs 
the  entire  celebration;  the  nuptial  ceremony  takes  place 
before  the  church  door,  and  is  followed  by  the  bridal  mass  in 
the  church  itself;  but  even  now  the  priest  is  a  mere  helper, 
and  the  religious  service  adds  nothing  to,  nor  its  omission 
takes  nothing  from,  the  validity  of  the  nuptial  contract. 

The  next  and  final  step  is  comparatively  easy  and  already 
assured.  By  the  beginning  of  the  thirteenth  century  the 
western  church  had  entered  upon  a  fourth  phase  in  respect 
to  the  solemnization  of  marriage.  This  was  facilitated,  ac- 
cording to  Sohm,^  by  the  custom,  already  mentioned,  of 
choosing  any  third  person  as  guardian  to  officiate  at  the 
nuptials,  marking  the  transition  from  the  ancient  tradition 
through  the  natural  guardian  to  the  stage  of  self-gifta  or 
tradition  by  the  bride  herself — a  stage  which  is  fairly  being 
entered  upon  at  the  beginning  of  the  thirteenth  century. 
This  new  and  more  liberal  form  of  lay  tradition  led  directly 
to  the  gifta  by  the  priest,  or  to  ecclesiastical  marriage 
properly  so  called.^  In  the  third  stage  of  development  the 
priest  could  not  venture  to  interfere  with  the  prerogative  of 
the  natural  guardian  to  give  his  ward  in  marriage.  He 
could  at  most  assist  as  orator  and  bestow  his  benediction. 
But  from  the  moment  that  custom  sanctioned  the  choice#of 
any  third  person  in  place  of  the  father  or  other  natural  pro- 
tector, the  clergy  appropriated  this  function  as  their  exclu- 
sive right.  While  the  church  "  bestowed  her  blessing  upon 
the  tradition  through  the  natural  guardian,  she  directed 
against  the  lay  chosen  guardian  her  excommunication."' 
So  at  this  point  arose  the  antagonism  between  private  and 
ecclesiastical  marriage.*      The  motive   of    the    church    was 

1  SoHM,  Eheschliessung,  164  £E.,  67  ff. ;  cf.  Feiedbeeg,  Eheschliessung,  94  ff. 

2  SOHM,  op.  cit.,  164.  3  Ibid.,  164  ff.,  179  ff. 

♦  The  ecclesiastical  act,  Handlung,  was  old ;  the  ecclesiastical  nuptials,  geistliche 
Trauung,  was  new.  This  is  Sohm's  view,  op.  cit.,  179  ff.,  183,  as  opposed  to  FbIBD- 
B£BG,  Eheschliessung,  85. 


310  Matrimonial  Institutions 

clearly  twofold.  While  she  very  naturally  strove  to  gain 
control  of  the  nuptial  celebration,  to  give  more  and  more  a 
religious  form  to  the  institution  already  declared  by  her  to 
be  a  sacrament,  she  doubtless  foresaw  something  of  the  evils 
which  would  ensue  from  clandestine  or  private  unions,  now 
that  the  consent  of  the  parent  or  natural  guardian  was  no 
longer  necessary,  as  in  early  days,  for  a  valid  marriage,  and 
therefore  began  to  legislate  in  the  interest  of  publicity. 

Henceforth  the  rituals  of  the  continent  show  plainly  that 
marriage  was  usually  celebrated  by  the  priest  and  not  merely 
in  his  presence;  though  the  ceremony  still  takes  place  at 
the  church  door.  The  parties  no  longer  simply  "marry 
themselves,"  repeating  after  the  priest  the  solemn  words  of 
the  nuptial  vow;  but  in  addition  the  priest  "gives  the  woman 
to  the  man,  saying  in  Latin  words:  I  join  you  in  the  name 
of  the  Father,  the  Son,  and  the  Holy  Ghost.  Amen;"  and 
this  formula,  taken  from  a  typical  French  ritual  of  the  four- 
teenth century,'  is  never  found,  as  already  explained,  in  the 
liturgies  of  the  preceding  period.  It  is  highly  important  to 
note  that  these  words  of  power  on  the  part  of  the  priest  do 
not  appear  in  the  English  service  before  the  period  of  the 
Reformation.  In  the  earlier  as  well  as  in  the  later  rituals  the 
parties  are  the  real  actors,  although  the  priest  is  leader  and 
teacher  in  the  whole  ceremony.     At  most,  so  far  as  the  form 

i"Tunc  sacerdos  det  earn  viro  dicens  verbis  latinis:  Et  ego  conjungo  vos  in 
nomine  Patris  et  Filii  et  Spiritus  Sancti.  Amen":  quoted  in  Sohm,  op.  cit.,  165, 
166,  from  a  Eouen  ritual  of  the  fourteenth  century  in  Martene's  collection.  DiECK- 
HOFF,  Die  kirch.  Trauung,  82  ff.,  takes  a  different  view.  The  Rouen  ritusd,  he  holds, 
is  not  a  typical  service.  The  priest  does  not  now  gain  an  essentially  new  function  at 
the  nuptials.  His  office  has  always  been  necessary  to  a  Christian  marriage.  In 
addition  to  his  original  power  of  joining  in  wedlock,  he  merely  adds  the  function 
exercised  by  the  father  or  guardian  in  the  formal  tradition.  Moreover,  Dieckhoff's 
position  is  supported  by  some  rituals,  which  seem  to  show  that  development  on  the 
continent  was  not  uniform  in  this  regard.  Cf.  Scheukl,  Entwicklung,  110  ff.,  who 
discusses  the  divergent  views  of  Sohm  and  Friedberg. 

The  last  stage  of  evolution  has  not  yet  been  reached  in  the  eastern  church.  In 
the  presence  of  the  priest  the  bride  and  groom  betroth  and  give  themselves  in  mar- 
riage. The  priest  merely  prays  and  blesses:  Sohm,  Zur  Trauungsfrage,  19  ff. ; 
Zhishman,  Das  Eherecht,  128, 13.5,  692  n.  1,  694  n.  1.  For  the  marriage  ritual  of  the 
Greek  church  see  Maetene,  De  ritibus,  II,  140-44. 


Rise  of  Ecclesiastical  Mabriage  311 

of  tradition  is  concerned,  evidence  of  a  mere  transition' 
from  the  third  phase  in  the  rise  of  ecclesiastical  marriage 
may  be  discerned.  The  priest  does  not  step  quite  into  the 
place  of  the  father  or  other  relative.  He  is  not  quite  a 
"chosen  guardian;"  for  he  receives  his  power  to  "give" 
the  bride  to  the  bridegroom  from  the  natural  guardian  or 
his  representative,  and  not  from  the  woman  .herself .  Thus, 
according  to  the  ancient  liturgy  of  York,  the  priest  says, 
"who  gyues  me  this  wyfe?  Then  the  woman  is  given  by 
her  father  or  by  a  friend ; "  ^  and  this  transitional  form  in 
substance  is  still  preserved  in  the  modern  service  of  the 
English  church.^  But,  apparently,  the  function  of  the  priest 
in  the  gifta  is  more  pronounced  in  the  York  manual  than  in 
any  of  the  other  mediaeval  rituals  which  have  been  preserved. 
In  some  of  them,  as  a  matter  of  fact,  it  receives  no  mention 
at  all.* 

1  Pointed  out  by  Sohm,  Eheschliessung,  164, 165. 

2Surtees  Society  Publications,  LXIII,  26. 

3"Whogiveth  this  woman  to  be  married  to  this  man?  Then  shall  they  give 
their  troth  to  each  other  in  this  manner.  The  minister  receiving  the  woman  at  her 
father's  or  friend's  hands,"  etc. :  Bingham,  The  Christian  Marriage  Ceremony,  164. 

*Thus  the  Hereford  ritual  simply  says,  after  declaration  of  the  dower,  "  et  pater 
vel  propinquus  mulieris  accipiat  eam,  et  tradat  homini  per  manum  dexteram" 
(Surtees  Society  Publications,  LXIII,  Appendix,  116).  Similarly  the  Pontifical  of 
Anianus,  bishop  of  Bangor,  of  the  thirteenth  century  declares,  "  Primo  dicatur  (dos) 
feminae,  deinde  detur  "  {ibid.,  162) ;  and  this  form  agrees  substantially  with  that  of 
the  Hanley  Castle  Missal  of  the  same  period  (ibid.,  163).  In  the  ritual  of  the 
fifteenth-century  Harleian  MS.,  in  the  British  Museum,  after  asking  the  banns,  "  the 
woman  shall  be  given  in  this  manner :  Sacerdos  utriusque  manu  dextera  apprehensa, 
jungat  eos  similiter,  sicut  faciunt  qui  fide  se  obligant"  (ibid.,  166);  but  here,  of 
course,  the  words  "jungat  eos"  are  not  words  of  power,  for  they  precede  the  mar- 
riage vow  of  the  parties.  According  to  the  Welsh  ritual  of  the  fifteenth  century, 
"  the  woman  is  given  by  her  father  or  by  another  friend  "  (ibid.,  167) ;  and  this  form 
is  observed  in  the  Sarum  liturgy  published  both  by  Maskell  (Monument a,  I,  56), 
and  the  Surtees  Society  (LXIII,  Appendix,  19),  while  in  one  MS.  of  the  same  service 
the  words  "deinde  detur  [Ecclesiae]  femina  a  patre  suo,  vel  ab  amicis  ejus"  (ibid., 
loc,  cit.,  19)  appear,  thus  in  effect  agreeing  with  the  form  of  the  York  manual.  An 
interesting  variation  occurs  in  the  Pontifical  of  Magdalen  College,  Oxford,  of  the 
twelfth  century,  where  the  priest  does  not  receive  the  woman  from  her  guardian, 
but  joins  with  him  in  giving  her  to  the  husband:  " Sacerdos  et  patronus  sponsae 
dent  ipsam  sponso  per  dexteram"  (ibid.,  160).  A  ritual  of  Aries  (ca.  1.300)  affords 
evidence  of  a  similar  transition  in  the  form  of  tradition :  see  the  extract  in  Sohm, 
Eheschliessung,  165  n.  27 ;  and  compare  on  this  subject  Feiedbeeg,  Eheschliessung, 
38,  62.    On  the  English  celebration  cf.  Jeaffeeson,  Brides  and  Bridals,  I,  88-98. 


312  Matrimonial  Institutions 

It  appears,  then,  as  regards  the  form  of  celebration,  that 
previous  to  the  Reformation  the  church  had  not  made  so 
great  progress  in  England  as  in  many  places  on  the  conti- 
nent. The  gifta  is  still  essentially  the  ancient  private  tra- 
dition, in  which  the  priest  has  at  most  a  subordinate  place ; 
and  the  words  of  power  following,  and  as  it  were  sealing,  the 
nuptial  vow  do  not  appear.  Still  there  is  a  decided  gain ;  for 
the  whole  procedure  is  given  a  religious  character  through 
the  solemn  prayers  and  benedictions,  the  authoritative  defini- 
tions of  the  nature  of  marriage,  and  the  stately  ceremonial  of 
the  bridal  mass,  in  all  of  which  the  priest  is  the  central  figure. 

If  now,  turning  from  the  evidence  afforded  by  the  con- 
tent of  the  prescribed  rituals,  we  examine  the  legislation  of 
the  church  for  enforcing  the  acceptance  of  these  rituals,  we 
shall  reach  a  similar  result.  Stated  broadly  in  advance,  the 
English  canons  created  a  sharp  distinction  between  legality 
and  validity.  Lay  marriages — that  is,  marriages  solemnized 
without  the  intervention  of  the  church,  including  clandestine 
unions  as  well  as  those  privately  contracted  before  witnesses 
with  parental  consent — were  opposed  to  canonical  marriages: 
and  lay  marriages  were  declared  illegal  under  severe  pen- 
alties, even  excommunication;  while  at  the  same  time,  if 
once  contracted  in  words  of  the  present  tense,  they  were 
maintained  as  equally  valid  and  equally  sacramental  in  their 
nature  with  those  celebrated  according  to  the  authorized 
liturgy  before  the  priest.^ 

During  the  Anglo-Saxon  period  various  orders  and  regu- 
lations commanding  the  benediction  were  passed.     Theodore 

I  In  general,  for  the  canons  relating  to  the  priestly  benediction  and  the  ecclesi- 
astical celebration  see  Johnson,  Collection  of  the  Laws  and  Canons  of  the  Church 
of  England,  I,  202;  II,  19,  27,  64,  89,  91,  340,  395,  410;  Pembeeton's  historical  sum- 
mary  in  10  Claek  and  Finnelly,  616  ff. ;  and  the  summaries  of  Maskell,  Monumenta 
ritualia,  I,  cclxiv-ix ;  and  Makowee,  CoTut.  Hist,  of  Church  of  England,  213,  214  n.  5. 
For  the  early  period  see  the  collections  of  Thorpe,  Schmid,  Haddan  and  Stubbs,  and 
Wilkins.  An  excellent  discussion  of  the  subject  is  given  by  Pollock  and  Maitland, 
Hist.  Eng.  Law,  II,  364  £f . ;  and  a  very  detailed  treatment  in  Feiedbeeg's  Eheschlies- 
sung,  33  ff.,  309  ff. 


Rise  of  Ecclesiastical  Marbiage  313 

thus  requires  the  priest,  in  the  case  of  a  first  marriage,  to 
celebrate  the  mass,  doubtless  the  ordinary  service,  and  to 
ask  a  benediction  upon  both  parties;'  while  by  the  ritual  of 
the  tenth  century,  already  quoted,  the  nuptials  are  to  be  cele- 
brated before  a  mass-priest  "who  shall  with  God's  blessing 
bind  their  union  to  all  prosperity.'"*  But  after  the  Conquest 
more  stringent  measures  were  taken  to  secure  publicity  and 
enforce  the  observance  of  religious  rites.  Especially  impor- 
tant is  the  celebrated  constitution  of  Archbishop  Lanfranc, 
alleged  to  have  been  enacted  at  the  Council  of  Winchester 
in  1076,  ordaining  "that  no  man  give  his  daughter  or  kins- 
woman in  marriage  without  the  priest's  benediction,"  and 
declaring  that  otherwise  "the  marriaore  shall  not  be  deemed 
legitimate  but  as  fornication."  ^  Twenty-six  years  later,  at 
the  Council  of  London,  an  attempt  was  made  by  Anselm  to 
put  a  check  upon  clandestine  contracts,  in  a  provision  which 
really  defines  the  principle  governing  the  decisions  of  the 
ecclesiastical  courts  throughout  the  west.  "  Promises  of 
marriage  made  between  man  and  woman  without  witnesses" 
are  declared  to  be'"null  if  either  party  deny  them."  *  In  1175 
these  acts  were  reinforced  by  a  canon  of  Archbishop  Richard, 
taken  from  the  decrees  of  Pope  Ormisdas  (Hormisdas)  of  the 

iPoemi.  Theod.,  Book  I,  c.  14,  §1:  Haddan  and  Stubbs,  Councils,  III,  187; 
Makowee,  Const.  Hist.  Church  of  Eng.,  213,  214  n.  5. 

2SCHMID,  Gesetze,  Anhang  VI,  392,  393;  Thorpe,  Ancient  Laws,  I,  255-57; 
Makowee,  loc.  cit.  Cf.  also  the  Excerptiones  Ecgberti,  c.  90  (or  88),  Thoepe,  II,  110, 
reproducing  a  canon  of  the  Council  of  Carthage  requiring  that  "  the  bridegroom  and 
bride  be  offered  by  the  parents,  and  bridefolk,  to  receive  the  priest's  benediction" : 
Johnson's  Canons,  1, 202,  and  the  so-called  Canones  Mlfrici  (A.  D.  992-1001),  sec.  9,  in 
Thoepe,  II,  347,  declaring  that  "the  layman  may,  however,  with  the  apostle's  leave 
take  a  wife  a  second  time;  if  his  wife  falls  away  from  him;  but  the  canons  forbid 
blessing  thereto  and  have  ordered  such  men  to  do  penance":  Makowee,  loc.  cit. 

3"Praeterea  statutum  est,  ut  nuUus  filiam  snam,  vel  cognatam,  det  alicni, 
absque  benedictione  sacerdotali.  Si  aliter  feceret,  non  ut  legitimum  conjugium,  sed 
ut  fornicatorium,  judicabitur." — Paekee,  De  antiquitate  britannicae  ecclesiae  (Lon- 
don, 1729),  173;  also  Wilkins,  Concilia,  I,  367;  Makowee,  loc.  cit.;  and  translated  in 
Johnson's  Canons,  II,  19.    Cf.  Pollock  and  Maitland,  Hist.  Eng.  Law,  II,  368  n.  2. 

*"  Ut  fides  inter  virum  et  mulierem,  occulte  et  sine  testibus,  de  conjugio  data, 
si  ab  alterutro  negata  fuerit,  irrata  habeatur."— Wilkins,  Concilia,  1, 382;  Johnson, 
Canons,  II,  27 ;  Makowee,  loc.  cit. 


314  Matrimonial  Institutions 

year  514,  ordering  that  "no  faithful  man,  of  what  degree 
soever,  marry  in  private,  but  in  public,  by  receiving  the 
priest's  benediction.  If  any  priest  be  discovered  to  have 
married  any  in  private  let  him  be  suspended  from  his  office 
for  three  years."  *  By  a  constitution  of  Archbishop  Walter, 
in  the  year  1200,  it  was  further  ordained  that  "no  marriage 
be  contracted  without  banns  thrice  published  in  church,  nor 
between  persons  unknown;"  and  no  marriage  not  publicly 
solemnized  in  face  of  the  church  is  "  to  be  allowed  of,  except 
by  the  special  authority  of  the  bishop."^ 

These  measures,  and  others  later  enacted  in  a  similar 
spirit,'  have  led  to  a  serious  misapprehension  of  the  real 
doctrine  of  the  canon  law.  From  them  it  has  been  zeal- 
ously argued  that  the  prescribed  religious  celebration  was 
essential  to  a  valid  contract ;  and  this  view  was  strengthened 
by  the  decree  of  Innocent  III.  at  the  fourth  Lateran  council, 
1215,  requiring  the  publication  of  banns  as  a  general  law 
of  the  western  church,  which  by  a  similar  error  was  under- 
stood to  have  ordained  ecclesiastical  marriage.*  But  in  the 
light  of  history  it  seems  clear  that  all  which  was  intended 
by  this  decree,  or  by  the  constitution  of  Lanfranc  and  its 
successors,  was  to  declare  the  unblessed  marriage  illegal, 
involving  certain  penalties  or  disadvantages,  without  touch- 
ing its  validity.^     The  lay  courts,  as  will  appear  in  the  next 

1  Johnson,  Canons,  II,  64,  ^ Ibid,,  91. 

s  Especially  the  constitution  of  Reynolds,  1322 ;  that  of  Stratford,  1343 ;  and  that 
of  Zouche,  1347 :  ibid.,  340,  341,  395,  410,  411. 

4  Feiedbeeg,  Eheschliessung,  39,  note,  gives  a  list  of  the  authors  making  this 
mistake.  "This  belief  is  stated  by  Blackstone,  Comment.,  1, 439,  and  was  in  his  time 
traditional  among  English  lawyers.  Apparently  it  can  be  traced  to  Dr.  Goldingham, 
a  canonist  who  was  consulted  in  the  case  of  Bunting  v.  Lepingwell  (Moore's  Reports, 
169)":  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  368,  369,  note;  Feiedbeeg, 
op.  cit.,  314, 

5  Even  the  words  of  Lanfranc,  strong  as  they  are,  do  not  invalidate  an  unblessed 
marriage,  "He  does  not  say  that  the  union  will  be  mere  fornication;  he  says  that 
it  will  be  coniugium,fornicatorium,  an  unlawful  and  f ornicatory  marriage,  Lanf ranc's 
words  recall  those  of  the  Pseudo-Isidorian  Evaristus  which  appear  in  c.  1,  C.  30,  q.  5  " : 
Pollock  and  Maitland,  op.  cit.,  II,  368  n.  2;  Fkeisen,  Oeschichte  des  can.  Ehe- 
rechts,  139, 


Rise  of  Ecclesiastical  Marriage  315 

chapter,  might  deny  full  rights  of  dower  and  inheritance  to 
the  issue  of  such  unions;  but  after  the  thirteenth  century, 
as  well  as  before,  marriages  celebrated  without  the  interven-  y^ 
tion  of  priest  or  magistrate  were  sustained  by  the  church  as 
binding.  As  already  emphasized  at  the  outset  of  this  dis- 
cussion, the  private,  even  secret,  agreement  of  the  parties, 
without  consent  of  parent  or  guardian,  if  expressed  in  words 
of  the  present  tense,  sponsalia  per  verba  de  praesenti,^ 
though  not  followed  by  cohabitation,  was  held  to  constitute 
a  valid  marriage ;  and  it  could  be  sustained  against  a  subse- 
quent contract  publicly  celebrated  according  to  ecclesiastical 
forms  and  followed  by  years  of  wedded  life.  This  is 
unquestionably  the  doctrine  of  the  canon  law  of  western 
Christendom,  as  emphatically  expressed  in  the  decretal 
epistle  of  Alexander  III.  to  the  bishop  of  Norwich  presently 
to  be  noticed;^  and  that  it  was  accepted  by  the  English 
courts  as  a  part  of  the  law  of  the  land  is  established  by 
conclusive  evidence.  Not  until  the  Council  of  Trent,  in  the  '^Z 
middle  of  the  sixteenth  century,  was  there  any  general  legis-  Y 

lation  of  the  church  to  enforce  ecclesiastical  rites.     This  1 

council,  after  anathematizing  those  who  deny  that  clandes-         ^ 
tine  marriages  theretofore  contracted  by  the  sole  agreement 
of  the  parties  and  without  parental  consent  are  "true  and 
valid,"  decreed,  contrary  to  the  opinion  of  fifty-six  prelates, 

1  For  some  account  of  the  distinction  between  sponsalia  de  praesenti  and  de 
futuro,  with  references,  see  the  next  chapter. 

2  This  epistle  sustained  a  marriage  by  private  consent  as  against  one  subse- 
quently contracted  and  consummated.  The  opposing  view  is  thus  set  forth  by 
Pemberton  in  The  Queen  v.  Millis:  "In  1160  Pope  Alexander  issued  edicts  in 
which  marriages  without  the  presence  of  a  priest  were  declared  good;  but 
almost  immediately  afterwards  came  the  canons  already  cited  [those  of  1175  and  1200 
mentioned  in  the  text],  to  guard  against  the  abuse  of  the  permission  thus  given  by 
the  pope.  But  from  what  follows  it  is  clear  that  the  law  which  admitted  the  canon 
law  in  other  countries,  as  part  of  the  law  of  the  land,  was  never  adopted  in  England. 
In  1253  the  attempt  was  made  to  introduce  the  canon  law  of  marriage  recognized  by 
the  popes,  against  the  ecclesiastical  law  of  England  and  the  answer  was  the  well- 
known  answer  that  the  barons  would  not  consent  to  have  the  laws  of  England 
changed":  10  Clark  and  Finnelly,  617.  This  is  a  strange  perversion  of  the 
truth:  see  Pollock  and  Maitland,  op.  cit,  II,  370  n.  1. 


316  Matrimonial  Institutions 

that  thenceforward  all  marriages  not  contracted  in  the  pres- 
ence of  a  priest  and  two  or  three  witnesses  shall  be  void.* 
This  decree  was  not  accepted  in  England,  and  "clandestine" 
marriages  continued  to  be  valid  until  the  middle  of  the 
eighteenth  century ;  and  until  1856,  in  Scotland,  as  is  well 
known,  the  mere  consent  of  the  parties,  however  expressed, 
constituted  a  binding  marriage.^ 

It  follows  that  the  unanimous  opinion  of  the  English 
judges  in  the  great  case  of  the  Queen  v.  Millis,  1844, 
against  the  validity  of  a  marriage  not  celebrated  before  an 
ordained  priest  of  the  established  church,  is  not  supported 
by  the  evidence  of  history  as  revealed  in  the  doctrines  of 
the  canon  law  and  in  the  action  of  the  ecclesiastical  courts 
during  six  centuries/  The  following  are  the  main  facts  in 
the  history  of  this  famous  suit:  In  January,  1829,  at  Ban- 
bridge,  county  of  Down,  Ireland,  George  Millis  and  Hester 
Graham  "entered  into  a  contract  of  present  marriage"  in 
the  presence  of  John  Johnstone,  the  "placed  and  regular 

IBOHN,  Po?.  Cyc,  in,  319,  320.  Feiedbeeg,  Eheschliessung,  123,124,  gives  the 
text  of  the  decree ;  and  his  second  book,  101-50,  contains  an  interesting  history  of  the 
proceedings  of  the  council  on  the  subject  of  marriage.  An  English  version  of  the 
text  of  the  decree  may  be  found  in  Wateewoeth,  Canons  and  Decrees  of  the  Council 
o/ Trenf,  196-99,  who  also  describes  the  proceedings  (ccxxi-xxxvi).  Cf.  Salis,  Die 
Publikation  des  trid.  Rechts  der  Eheschliessung,  2  S. ;  Fleinee,  Die  trident.  Ehevor- 
schrift,  1 S. ;  EsMEiN,  Le  manage  en  droit  canonique,  11, 119-37 ;  M  aban,  Thelyphthora, 
III,  238  ff.  SoHM,  Eheschliessung,  187-96,  shows  that  the  Tridentinum  still  maintains 
the  Germanic  principle  of  consensus  as  the  valid  marriage. 

For  the  sources  see  the  collections  of  Theiner  and  Richter-Schulte  and  the  works 
of  Sarpi  and  Pallavicino  mentioned  in  Bibliographical  Note  VII. 

2  On  Scotch  marriages  see  Edgae,  Marriages  in  Olden  Times,  134-203;  Walton, 
Scotch  Marriages;  Qeas.i,  Marriage  and  Family  Relations,  534 ff.;  Hammick,  The 
Marriage  Law,  221  ff . ;  Feiedbeeg,  Eheschliessung,  57,  58,  426,  427,  437-59;  Bohn,  Pol. 
Cyc,  III,  326;  Stephens,  Latvs  of  the  Clergy,  I,  672,  688;  Eobeetson,  Encyc.  Britan- 
nica,  XV,  567 ;  Kent,  Commentaries,  II,  90.  Cf.  especially  the  case  of  Dalrymple  v. 
Dalrymple,  in  2  Haggaed's  Consistory  Reports,  54-137. 

3  See  the  cases  mentioned  in  the  Bibliographical  Note  at  the  head  of  this  chapter. 
Of  course,  most  of  the  decisions  are  cited  and  elaborately  discussed  by  the  counsel 
and  judges  in  Queen  v.  Millis  and  Beamish  v.  Beamish.  An  important  case  is  given 
in  Harvard  Law  Review,  VI,  11.  Cf.  Swinbuene,  Of  Spcmsals,  13, 104, 193,  passim ; 
and  especially  Hale's  Precedents  and  Proceedings  in  Criminal  Laws,  1475-1640, 
taken  from  the  act-books  of  ecclesiastical  courts  in  the  diocese  of  London,  and  con- 
taining a  mass  of  most  interesting  and  convincing  evidence  relating  to  the  subject 
(see  the  Index  at  "  Matrimonial  Causes  ")• 


KisB  OF  Ecclesiastical  Marriage  317 

minister  of  the  congregation  of  Protestant  dissenters  com- 
monly called  Presbyterians,  at  Tullylish,  near  Banbridge," 
who  performed  a  solemn  religious  ceremony  according  to 
the  usual  rites  of  his  sect.  Thus  there  waa-a  petferir  and 
binding  contract  de  praesenti  according  to  ecclesiastical  law. 
Later,  while  Hester  was  still  living,  Millis  married  Jane 
Kenedy  in  England,  using  the  forms  of  the  established 
church,  of  which  he  was  a  member.  At  the  spring  assizes 
of  1842,  for  the  county  of  Antrim,  Ireland,  Millis  was 
indicted  for  bigamy.  The  case  was  removec^  by  ceriiorari 
into  the  Irish  court  of  Queen's  Bench,  where  the  four  judges 
were  evenly  divided;  but  Justice  Perrin,  who  favored  the 
validity  of  the  first  marriage,  withdrew  his  opinion  pro 
forma,  that  the  case  might  go  to  the  House  of  Lords  for 
definite  settlement.^  The  Lords  submitted  the  case  to  the 
English  judges  for  advice;  and  they  unanimously  decided  / 

against  the  validity  of  the  first  marriage  on  the  ground  that  ^ 
it  had  not  been  celebrated  before  a  regular  clergyman  of  the 
English  church.  That  the  decision  was  hasty  and  in  direct 
opposition  to  history,  as  revealed  in  all  the  great  cases,  there 
can  now  be  small  doubt.  "We  have  here,"  says  Bishop,  "a 
question  of  almost  pure  ecclesiastical  law,  submitted  to  a 
tribunal  composed  of  common-law  and  equity  lawyers,  who 
necessarily  possessed  little  or  no  knowledge  of  the  subject.  So 
they  ask  advice,  not  from  the  ecclesiastical  judges,  whose  func- 
tions had  qualified  them  to  give  it,  but  from  the  uninstracted 
common-law  judges.  The  latter  were  competent  to  learn, 
but  they  were  not  allowed  the  necessary  time.  Lord  Chief- 
Justice  Tindal,  who  delivered  their  opinion,  complained  of 
the  want  of  time  for  investigation ;  and  the  opinion  through- 
out shows  the  complaint  to  have  been  well  founded."^ 

This  view  is  strongly  supported    by  the  action  of   the 

1  For  the  record  of  the  proceedings  in  Ireland  see  Report  of  the  Cases  of  Regina  v. 
Millis,  et  Regina  v.  Carroll  in  the  Quee^i's  Bench  in  Ireland  (Dublin,  18t2). 
J  Bishop,  Mar.,  Div.,  and  Sep.,  I,  §§  400,  401. 


318  Matrimonial  Institutions 

Lords.  In  spite  of  the  united  opinion  of  the  judges,  the  final 
deliberation  of  the  six  law  peers  resulted  in  a  tie :  Lords  Cot- 
teuham,  Abinger,  and  Chancellor  Lyndhurst  holding  the  first 
marriage  to  be  void ;  and  Lords  Brougham,  Denman,  and 
Campbell  maintaining  its  validity.  But  since  the  case  was 
on  appeal  from  the  decision  of  another  court,  the  result  of 
the  tie  was  to  declare  the  invalidity  of  unblessed  wedlock.^ 
Thus  by  a  remarkable  sequence  of  circumstances  and 
accidents  was  established  the  judicial  interpretation  of  the 
English  law  governing  the  marriage  celebration.^  The  de- 
cision was  therefore  followed  in  another  celebrated  case, 
that  of  Beamish  v.  Beamish,  which  came  before  the  House 
of  Lords  in  1861.  This  was  a  case  of  "clandestine"  mar- 
riage, the  bridegroom  himself  performing  the  ceremony  in  a 
private  house  according  to  the  ritual  of  the  established 
church.  In  the  record  we  are  told  that  the  "Rev.  S.  S. 
Beamish,  in  the  year  1831,  became  attached  to  a  young  lady 
named  Isabella  Frazer  (both  being  members  of  the  United 
Church  of  England  and  Ireland),  and  as  he  did  not  obtain 
his  father's  consent  to  his  marriage  with  her,  he  persuaded 
her  into  a  clandestine  marriage,  which,  according  to  the 
special  verdict  found  in  the  case,  was  performed  in  the  fol- 
lowing manner:  'On  the  27th  November,  1831,  the  Rev. 
Samuel  Swayne  Beamish,  being  then  a  clergyman  in  holy 
orders,  went  to  the  house  of  one  Anne  Lewis,  in  the  city  of 
Cork,  and  there  performed  a  ceremony  of  marriage  between 
himself  and  Izabella  Frazer,  by  reading  between  them  .... 
the  form  of  solemnization  of  matrimony  used  in  said  United 

1  The  case  is  given  in  10  Claek  and  Finnelly,  Reports  of  Cases  Decided  in  the 
House  of  Lords,  534-907.  The  text  of  the  opinion  of  the  English  judges  may  also  be 
found  in  Stephens,  Laws  of  the  Clergy,  1,  675-94.  It  was  ably  refuted  by  Sik  John 
Stoddaet  in  his  Observations  on  the  Opinion  and  his  Letter  to  Lord  Brougham  (both 
London,  1844). 

2  In  1844,  by  the  act  of  7  and  8  Victoria,  c.  81,  the  essential  features  of  6  and  7 
Will.  IV,  c.  85,  which  had  made  the  public  observance  of  ecclesiastical  or  civil  forms 
necessary  to  a  valid  marriage  in  England,  were  extended  to  Ireland ;  and  this  was  the 
result  of  the  excitement  caused  by  the  case  of  the  Queen  v.  Millis  of  the  same  year. 


Rise  op  Ecclesiastical  Marriage  319 

Church  of  England  and  Ireland,  as  set  forth  in  the  Book  of 
Common  Prayer,  ....  by  declaring'  in  words  of  the  present 
tense  that  he  took  the  bride  'to  his  wedded  wife,'  she 
making  a  similar  avowal ;  by  placing  a  ring  on  her  finger ; 
and  by  pronouncing  the  blessing  in  the  appointed  form," 
The  court  held  the  contract  void,  declaring  that,  since  it  was 
"settled  by  the  decision  in  the  Queen  v.  Millis,  that  to  con- 
stitute a  valid  marriage  by  the  common  law  of  England,  it 
must  have  been  celebrated  in  the  presence  of  a  clergyman  in 
holy  orders,  the  fact  that  the  bridegroom  is  himself  a  clergy- 
man in  holy  orders,  there  being  no  other  clergyman  present, 
will  not  make  the  marriage  valid."  For  "as  to  the  manner 
in  which  a  marriage  is  to  be  celebrated,  the  law  does  not 
admit  of  any  difference  between  the  marriage  of  a  clergyman 
and  of  a  layman." ' 

The  singular  motives  underlying  this  decision  have  been 
recently  discussed  in  an  instructive  way  by  Sir  Frederick 
Pollock.  It  appears  that  a  former  judgment  of  the  Lords 
must  be  maintained,  however  absurd  or  however  inconsistent 
with  history  or  justice  it  is  felt  to  be.  Already  in  1852  and 
again  in  1860  Lord  Chancellor  Campbell  had  committed 
himself  to  the  dogma  that  the  House  of  Lords  is  bound  by 
its  own  decisions.  At  the  former  date,  answering  Lord  St. 
Leonards,  who  holds  the  opposite  view,  he  says :  "I  con- 
sider it  the  constitutional  mode  in  which  the  law  is  declared, 
and  that  after  such  a  judgment  has  been  pronounced  it  can 
only  be  altered  by  an  Act  of  the  Legislature."^  When  the 
case  of  Beamish  v.  Beamish  came  "before  the  House  of 
Lords,  the  late  Mr.  Justice  Willes  virtually,  though  not  pro- 
fessedly, demonstrated,  in  a  full  and  most  learned  opinion, 

1  Case  of  Beamish  v.  Beamish  in  9  House  of  Lords  Cases,  274-358.  The  report  in 
this  case,  like  that  in  Queen  v.  Millis,  constitutes  an  extended  history  of  English 
matrimonial  law. 

2  In  Bright  v.  Hutton,  3  H.  L.  C,  391,  392.  For  his  opinion  in  1860  see  A.-G.  v. 
Dean  and  Canons  of  Windsor,  8  H.  L.  C,  391-93. 


320  Matrimonial  Institutions 

that  the  supposed  difiFerence  between  the  law  of  England  and 
that  of  the  rest  of  western  Christendom  was  imaginary. 
His  reasons  convinced  Lord  Campbell  and  Lord  Wensley- 
dale,  but  Lord  Campbell  declared  himself  not  at  liberty  to 
act  on  his  conviction;"  though,  for  sound  reasons  which  he 
admits,  he  confessed  that  if  competent  for  him  he  would  ask 
their  Lordships  to  reconsider  their  judgment  in  the  Queen 
V.  Millis.  "But  it  is  my  duty,"  he  adds,  "to  say  that  your 
Lordships  are  bound  by  this  decision  as  much  as  if  it  had  been 
pronounced  nemine  dissentiente.'''  A  "rule  of  law  thus  judi- 
cially expressed  must  be  taken  as  for  law  till  altered  by  an 
act  of  Parliament."  The  "law  laid  down  as  your  ratio  deci- 
dendi, being  clearly  binding  on  all  inferior  tribunals,  and  all 
the  rest  of  the  Queen's  subjects,  if  it  were  not  considered  as 
equally  binding  upon  your  Lordships,  this  house  would  be 
arrogating  to  itself  the  right  of  altering  the  law,  and  legis- 
lating by  its  own  separate  authority."  It  "may  seem  start- 
ling," comments  Pollock,  "that  questions  of  legitimacy  and 
property  should  be  treated  as  irrevocably  settled  by  the 
result  of  an  equal  division  of  the  House  of  Lords,  on  argu- 
ment and  information  admittedly  imperfect  with  regard  to  the 
history  of  the  law;  that  result,  moreover  depending  on  the 
accident  of  the  form  in  which  the  appeal  was  presented :  but  so 
they  were."  Thus  in  Beamish  v.  Beamish  an  opinion  of  seven- 
teen years  earlier  was  accepted  as  binding,  "which  in  1861 
was  believed  by  a  majority  of  the  House  of  Lords  and  the 
judges  who  advised  them,  and  is  now  believed  by  most  com- 
petent scholars,  to  be  without  any  real  historical  foundation."' 

1  Following  Pollock,  First  Book  of  Jurisprudence  (London,  1896),  311-17. 

In  general,  on  these  decisions  and  those  preceding  see  the  masterly  discussion 
of  Friedbeeg,  Eheschliessung,  39-57,  427,  464  ff.  His  conclusions  are  supported  by 
SoHM,  Eheschliessung,  125  ff. ;  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  367  ff. ; 
and  by  the  article  of  Elphinstone,  in  Laio  Quarterly  Review,  V,  49  ff.  Compare 
Reeves,  Hist,  of  the  Common  Law,  IV,  52  ff. ;  Bishop,  Marriage,  Divor-ce,  and  Separa- 
tion,!!,Ill, 112;  Kent,  Commentaries,  II,  87  ff.,  notes;  Urigut,  Husband  and  Wife, 
II,  393.  These  judgments  are  regarded  as  historically  just  by  Dieckhoff,  Die  kirch. 
Trauung,  70,  note;  and  Cook,  "  The  Marriage  Ceremony  in  Europe,"  Atlantic,  LXI. 


CHAPTER   VIII 

RISE    OF    ECCLESIASTICAL    MARRIAGE:    THE    CHURCH 
DEVELOPS  AND  ADMINISTERS  MATRIMONIAL  LAW 

[Bibliographical  Note  VIII. —  For  the  evolution  of  the  canonical 
theory  of  marriage  the  Richter-Friedberg  Corpus  juris  cartontci  (Leip- 
zig, 1881  flf.),  Peter  Lombard's  Sententiae  (Incunabula,  Textus  sen- 
tentiarum,  1488,  Sutro  Library),  and  the  Ante-Nicene  Fathers  (Buflfalo, 
1885-87)  are  of  the  first  importance.  The  collections  of  Haddan  and 
Stubbs,  Thorpe,  Schmid,  Hale,  and  Johnson,  mentioned  in  Biblio- 
graphical Note  VII,  are  available  for  this  chapter;  as  are  also  the  col- 
lections of  Richter-Schulte,  Theiner,  and  Waterworth,  the  works  of 
Sarpi  and  Pallavicino,  the  monographs  of  Salis,  Fleiner,  Riedler,  and 
Leinz,  the  papers  of  Meurer  and  Schulte,  with  the  other  authorities 
already  cited  for  the  Council  of  Trent.  Well-known  treatises  on  the 
canon  law  are  Lyndwood,  Provineiale  (ed.  of  1505  and  Oxford,  1679); 
Sanchez,  Disputationum  de  s'"  matrimonii  sacramento  (Venice,  1625); 
and  Godolphin,  Repartorium  canonicum  (3d  ed,,  London,  1687).  With 
these  may  be  used  Smith,  Elements  of  Ecclesiastical  Law  (New  York, 
1882);  Phillimore,  Ecclesiastical  Law  (London,1873-76);  Stephens,  Laws 
Relating  to  the  Clergy  (London,  1848);  Burn,  Ecclesiastical  Law  (Lon- 
don, 1842);  and  the  excellent  summary  of  Geary,  Marriage  and  Family 
Relations  (London,  1892),  chap,  xvi,  where  the  principal  sources  are 
mentioned.  Dodd's  History  of  the  Canon  Law  (London,  1884)  is  too 
general  to  be  of  much  service.  A  good  handbook  of  Catholic  doctrine, 
with  full  citation  of  authorities,  is  Gury's  Compendium  of  Moral 
Theology;  and  in  this  connection  may  also  be  consulted  Amat's  con- 
venient Treatise  on  Matrimony  (San  Francisco,  1864);  the  works  of 
Cigoi,  Didon,  Roskov^ny,  Perrone,  and  Scheicher-Binder  described  in 
Bibliographical  Note  XI. 

The  rise  of  the  system  of  enforced  celibacy  of  the  clergy,  with  the 
consequent  evils,  is  most  fully  treated  by  the  brothers  Theiner,  Die 
Einfiihrung  der  erzwungenen  Ehelosigkeit  (3d  ed.,  Barmen,  1891-98), 
whose  book,  first  published  in  1828,  has  been  fiercely  attacked  by  Catho- 
lic critics;  and  Lea,  Sacerdotal  Celibacy  (2d  ed.,  Boston,  1884);  supple- 
mented by  his  History  of  Auricular  Confession  and  Indulgences  in 
the  Latin  Church  (Philadelphia,  1896).  The  immorality  of  the  medi- 
aeval clergy  is  also  described  by  Bouvet,  De  la  confession  et  du  c4libat 
des  pretres  (Paris,  1845) ;  Gage,  Woman,  Church,  and  State  (Chicago, 

321 


322  Matrimonial  Institutions 

1893);  idem,  an  article  under  the  same  title  in  History  of  Woman  Suf- 
frage (New  York,  1881);  Lecky,  History  of  European  Morals  (3d  ed., 
New  York,  1881);  and  Huth  in  the  third  chapter  of  Marriage  of  Near 
Kin  (2d  ed.,  London,  1887).  For  a  later  period  the  subject  is  dealt  with 
by  Michelet,  Le  pretre,  la  femme,  et  la  famille  (new  ed.,  Paris,  1889);  and 
"  A.  F.  R.,"  Betrachtungen  iiber  den  Klerikal-  und  Monchsgeist  im  neun- 
zehnten  Jahrhundert  (1805).  In  this  connection  see  also  Bucksisch,  De 
apostolis  uxoratis  (new  ed.,  Wittenberg,  1734);  Essich,  De  elericis  mari- 
tis  dissertatio  historica  (Augusta  Vindelicorum,  1747);  Feyerabend,  De 
privilegiis  mulierum  (Jena,  1667);  Recherches  philosophiques  et  histo- 
riques  stir  le  c4libat  (Geneva,  1781);  De  Vinstitution  du  cilibat  (Paris, 
1808);  Klitsche,  Geschichte  des  Colibats  ....  ztim  Tode  Gregorys  VII. 
(Augsburg,  1830) ;  Lind,  De  coelibatu  ehristianorum  per  tria  priora 
secula  (Havniae,  1839);  the  anonymous  Letters  on  the  Constrained 
Celibacy  of  the  Clergy  (London,  1816);  Zimmermann,  Der  Priester- 
Colibat  (Kempten,  1899),  presenting  the  loyal  Catholic  point  of  view; 
and  the  monograph  of  Schulte,  Der  Colibatszwang  und  dessen  Aufhe- 
bung  (Bonn,  1876).  A  favorable  view  of  the  conventual  life  is  taken  by 
Eckenstein,  Woman  under  Monasticism  (Cambridge,  1896);  and  curious 
monuments  of  the  contempt  for  woman  produced  by  asceticism  are  the 
books  of  Valens  Acidalius  and  his  adversary  Simon  Geddicus,mentioned 
in  a  footnote  below.  For  the  controversy  in  France  regarding  the  validity 
of  the  marriage  of  a  priest  under  the  temporal  law  see  Nachet,  Liberty 
du  mariage  des  prHres :  M4moire  produit  a,  la  Cour  de  Cassation  pour 
M.  Dumonteil  (Paris,  1833);  and  Horoy,  Du  mariage  civil  du  pretre  en 
France  (Paris,  1890). 

The  manifold  evils  arising  from  the  canonical  distinction  between 
sponsalia  de  praesenti  vel  futuro  are  best  described  in  the  vigorous 
words  of  Martin  Luther.  In  particular  should  be  read  the  thirty -sixth 
chapter  of  the  Tischreden  (folio,  Frankfort,  1571),  and  the  Von  Ehe- 
sachen :  Werke,  XXIII  (Erlangen  ed.)  or  Vol.  V  in  Biicher  und  Schriften 
(Jena,  1555-80).  The  quaint  and  learned  book  of  Swinburne,  Of  Spou- 
sals  (London,  1686),  contains  a  striking  passage  bearing  on  the  subject; 
while  for  the  mediaeval  English  law  should  be  consulted  Glanville's 
Tractatus;  Bracton's  De  Legibus  (ed.  Twiss,  London,  1878-83);  idem, 
Note  Book  (ed.  Maitland,  London,  1887);  and  Maitland's  Select  Pleas 
of  the  Crown.  With  Sohm's  view  as  to  the  essential  identity  in  form  of 
the  two  kinds  of  sponsalia  compare  the  various  works  of  Biener,  Bier- 
ling,  Sehling,  Scheurl,  and  Dieckhoflf  mentioned  in  Bibliographical  Note 
VII.  The  text  of  Master  Vacarius's  Summa  de  matrimonio  is  edited 
by  Maitland  in  Law  Quarterly  Review,  XIII  (London,  1897);  and  in  the 
same  volume  he  discusses  Vacarius's  theory  of  marriage,  differing  essen- 
tially from  that  of  Gratian  or  Lombard.  Assistance  may  also  be  had 
from  Weber,  De  vera  inter  sponsalia  de  praesenti  et  nuptias  differ- 


Rise  op  Ecclesiastical  Marriage  323 

entia  (Parchimi,  1825) ;  Hoffmann,  De  aetate  juvenili  contrahendis 
sponsalibus  (Regiomonti  et  Lipsiae,  1743);  Lipoid,  Arbor  consanguini- 
tatis  et  afflnitatis  (n.  p.,  n.  d.);  Niemeier,  De  conjugiis  prohibitis  dis- 
sertationes  (Helmstadt,  1705);  Born,  De  bannis  nuptialibus  (Leipzig, 
1716);  and  the  dissertations  on  parental  consent  and  clandestine  mar- 
riage mentioned  in  Bibliographical  Note  IX. 

Remarkable  testimony  as  to  the  existence  of  clandestine  marriage 
in  England  during  the  first  half  of  the  sixteenth  century  is  given  by 
Rich-ard  Whitforde,  A  Werkefor  householders  (1530;  2d  ed.,  1537);  and 
in  Miles  Coverdale's  translation  of  Bullinger's  Christen  State  of  Mat- 
rimonye  (1st  ed.,  1541,  in  British  Museum). 

Indispensable  guides  for  the  study  of  the  entire  subject  are  still  the 
works  of  Sohm,  Friedberg,  and  Pollock  and  Maitland;  but  by  far  the  best 
systematic  histories  of  canon-law  marriage  are  Freisen's  Geschichte  des 
canonischen  Eherechts  (Tubingen,  1888;  Paderborn,  1893);  and  Esmein's 
masterly  Le  mariage  en  droit  eanonique  (Paris,  1891),  A  similar  work 
for  the  eastern  church  is  Zhishman's  Das  Eherecht  der  orientalischen 
Kirche  (Vienna,  1864).  Illustrative  decisions  are  communicated  by 
FrensdorflF,  "  Ein  Urtheilsbuch  des  geistlichen  Gerichts  zu  Augsburg 
aus  dem  14.  Jahrhundert,"  in  ZKR.,  X  (Tubingen,  1871);  and  Loersch, 
"  Ein  eherechtliches  Urtheil  von  1448,"  ibid.,  XV  (Freiburg  and  Tubingen, 
1880).  There  is  an  article  on  the  beginnings  of  ecclesiastical  jurisdiction 
by  Sohm,  "  Die  geistliche  Gerichtsbarkeit  im  f  rankischen  Reich,"  ibid., 
IX  (Tubingen,  1870).  Wunderlich  has  a  serviceable  edition  of  Tancred's 
Summa  de  matrimonio  (Gottingen,  1841);  and  among  the  works  relat- 
ing to  special  questions  are  Sehling,  Die  Wirkungen  der  Oeschlechts- 
gemeinschaft  auf  die  Ehe  (Leipzig,  1885);  Heinlein,  Die  bedingte  Ehe- 
schliessung  (Vienna,  1892);  Andreae,  Einfluss  des  Irrthums  auf  die 
Giiltigkeit  der  Ehe  (Gottingen,  1893);  Eichborn,  Ehehinderniss  der 
Blutsverwandtschaft(BTes\aiU,1872);  Gengk.,Irrtumund Betrug  als Ehe- 
hinderniss (Breslau,  1898);  Benemann,  De  natura  matrimonii  (Halle, 
1708);  Baier,  Die  Naturehe  in  ihrem  Verhdltniss  zur  ....  ehristlich- 
sakramentalen  Ehe  (Regensburg,  1886);  Hahn,  Die  Lehre  von  den  Sa- 
kramenten  (Berlin,  1864);  and  the  standard  Catholic  treatise  of  Oswald, 
Die  dogmatische  Lehre  von  den  heiligen  Sakramenten  (5th  ed.,  Miin- 
ster,  1894). 

In  general,  besides  the  works  of  Gide,  Loening,  Combier,  Tissot, 
Burn,  Thwing,  Blackstone,  Jeaflfreson,  Lingard,  Makower,  Madan,  and 
Morgan,  elsewhere  described,  the  following  have  been  drawn  upon  in 
various  connections:  Wasserschleben,  Bussordnungen  (Halle,  1851); 
Schmitz,  Bussbiicher  (Mainz,  1883);  hohethan, Einleitung  zur  theoreti- 
schen  Ehe-Rechts-Gelarhtheit  (Halle,  1785);  Schott,  Einleitung  in  das 
Eherecht  (new  ed.,  Nuremberg,  1802) ;  Goeschl,  Ehegesetze  (Aschaflfen- 
burg,  1832);  Staudlin,  Geschichte  der  Vorstellungen  und  Lehren  von 


324  Matrimonial  Institutions 


derEhe  (Gottingen,  1826);  Palgrave,  English  Commonwealth  (London, 
1832);  Kemble,  Saxons  in  England  (London,  1876);  Ellis,  Introduction 
to  Domesday  Book  (Record  Commission,  1833);  Bigelow,  Placita  anglo- 
normannica  (Boston,  1881);  Stubbs,  Select  Charters  (Oxford,  1881); 
idem,  Constitutional  History  (Oxford,  1875-78);  idem,  Seventeen  Lec- 
tures (Oxford,  1886);  Denton,  England  in  the  Fifteenth  Century  (Lon- 
don, 1888);  Traill,  Social  England  (New  York,  1898);  Nisbet,  Marriage 
and  Heredity  (London,  1888);  Smith,  The  Parish  (London,  1857);  Kent, 
Commentaries  (Boston,  1873);  Gibbon,  Decline  and  Fall  (London,  1830); 
and  some  of  the  Reformation  writers  referred  to  in  Bibliographical 
Notes  IX  and  XL] 

I.       THE    EARLY    CHRISTIAN    DOCTRINE    AND    THE    RISE   OP 
THE    CANONICAL    THEORY 

It  was  most  unfortunate  for  civilization  that  the  Christian 
conception  of  the  nature  of  marriage  should  have  sprung 
from  asceticism,  and  that  the  verbal  subtlety  of  the  school- 
men should  have  produced  the  cardinal  definitions  upon 
which  the  validity  of  marriage  contracts,  and  therefore  the 
practical  administration  of  matrimonial  law,  were  made  to 
depend.  The  mediaeval  teaching  regarding  forbidden  de- 
grees, the  sacramental  nature  of  matrimony,  and  the  differ- 
ence between  contracts  defuturo  and  depraesenti  are  mainly 
responsible  for  the  shameful  abuses  which  disgrace  the 
record  of  ecclesiastical  judicature  previous  to  the  Council  of 
Trent.  With  regard  to  an  institution  upon  which  in  so  high 
a  degree  the  welfare  of  society  depends,  anarchy  was  prac- 
tically sanctioned  by  the  canon  law.  Where  the  utmost 
clearness  and  simplicity  were  needed,  obscurity  and  complex- 
ity prevailed ;  and  where  publicity  was  urgently  required  by 
the  plainest  rule  of  common-sense,  there  secrecy  was  in  effect 
invited  and  rewarded. 

The  early  church  was  only  too  ready  to  take  in  hand  the 
supervision  of  marriage  and  the  development  of  matrimonial 
law.  With  regard  to  the  form,  as  already  shown,  her  prog- 
ress was  cautious  and  slow.    Not  until  the  thirteenth  century, 


Rise  of  Ecclesiastical  Marriage  325 

as  a  general  rule,  does  the  priest  appear  with  authority  as  one 
especially  qualified  by  his  religious  office  to  solemnize  the 
nuptials.  But  long  before  this,  in  nearly  every  other  respect 
save  only  the  betrothal,  the  church  was  taking  sole  posses- 
sion of  the  field  of  matrimonial  law  and  jurisdiction.'  Yet 
the  institution  of  marriage  was  accepted,  as  it  were,  under 
protest.  Here  and  there,  of  course,  the  early  Fathers  admit 
the  purity  of  the  marriage  state,^  but  usually  with  a  tone  of 
apology  or  depreciation  which  is  itself  very  suggestive  of  the 
pervading  trend  of  the  ascetic  mind.  If  wedlock  be  holy, 
celibacy  is  much  more  holy.  "It  is  better  to  marry  than  to 
burn,"  is  a  dictum  which  sounds  the  keynote  of  ecclesiastical 
dogma.  "Few  texts,"  declare  Pollock  and  Maitland,  "have 
done  more  harm  than  this.  In  the  eyes  of  the  medioBval 
church  marriage  was  a  sacrament;  still  it  was  but  a  temedy 
for  fornication.  The  generality  of  men  and  women  must 
marry  or  they  will  do  worse;  therefore  marriage  must  be 
made  easy ;  but  the  very  pure  hold  aloof  from  it  as  from  a 

1  EsMEiN,  Le  mariage  en  droit  canonique,  I,  3,  4,  distinguishes  the  three  phases 
in  the  growth  of  the  canon  law :  "  D'abord,  elle  s'est  d6velopp6e  &  cOt6  du  droit  s6cu- 
lier,  celuici  restant  ind6pendant  et  souverain  dans  son  domaine,  et  n'a  exerc6  qu'une 
action  parall6le.  Dans  une  seconde  phase,  elle  a  supplants  et  61imin6  le  droit  s6cu- 
lier,  elle  seule  r6gissant  le  mariage  dans  I'Europe  chr6tienne.  Enfin,  devant  un 
reflux  puissant  de  la  l§gislation  civile,  elle  a  da,  dans  le  temps  moderne,  abandonner 
le  terrain  qu'elle  avait  ainsi  occup6,  pour  garder  seulement  son  autorit6  premifere, 
et  reprendre  son  ancienne  position." 

2  For  examples  see  Ignatius,  Epis.  to  Philadel.,  c.  iv;  Epis.  to  Polycarp,  c.  v, 
in  Ante-Nicene  Fathers,  I,  81,  95;  Jdstin,  First  ApoL,  cxv,  ibid.,  167  ;  Athenagoeas, 
Plea  for  Christians,  c.  xxxiii,  ibid.,  II,  147;  Clement  of  Alex.,  ibid.,  259-63,  377-79. 
In  this  last  passage  Clement  is  less  coarse  than  usual.  "  Marriage,  then,  as  a  sacred 
image,"  he  concludes,  "  must  be  kept  pure  from  those  things  which  defile  it."  Cf, 
also  Teetdllian,  ibid..  Ill,  293-95,  443 ;  Origen,  To  His  Wife,  ibid.,  IV,  40-44.  Com- 
pare BuCKSiscH,  De  apostolis  uxoratis,  9  ff.,  who  holds  that,  with  the  exception  of 
John  and  Paul,  all  the  apostles  had  wives.  In  general,  on  the  development  of  the 
early  Christian  conception  of  marriage  from  its  Roman  and  Hebrew  beginnings,  see 
Feeisen,  Geschichte  des  can.  Eherechts,  32  ff. ;  Zhishman,  Das  Eherecht  der  orient. 
Kirche,  93  ff. ;  Schulte,  Der  CGlibatszwang,  5  ff. ;  Theiner,  DicEinfuhr.  der  erz.  Ehe- 
losigkeit,  I,  5  ff . ;  Staddlin,  Geschichte  der  Vor.stellungen  und  Lehren  von  der  Ehe, 
259  ff. ;  Letters  on  the  Const.  Celibacy  of  the  Clergy,  22  ff.,  51  ff. ;  Eecherches  phil.  et 
hist,  sur  le  cilibat,  67  ff.  On  the  influence  of  Paul's  teaching  see  Thwing,  The  Family, 
47  ff. ;  and  compare  Nisbet,  Marriage  and  Heredity,  33-57,  who  takes  an  unfavorable 
view  of  the  influence  of  the  church  as  opposed  to  that  of  Christianity  ;  and  Gage, 
Woman,  Church,  and  State,  49  ff. ;  Hcth,  Marriage  of  Near  Kin,  108  ff. 


■ 


326  Matrimonial  Institutions 

defilement.     The  law  that  springs  from  this  source  is  not 
pleasant  to  read."* 

Here  we  have  a  double  paradox,  two  irreconcilable  con- 
tradictions, which  in  due  time  produced  their  natural  evil 
fruit.  On  the  one  hand,  marriage  is  a  sacrament,  a  holy 
mystery,  yet  it  rests  upon  a  mere  human  contract.^  On  the 
other  hand,  though  possessing  a  sacramental  character,  it  is 
but  a  compromise  with  lust,  from  which  the  saint  may  well 
abstain.  Hence  a  premium  is  placed  upon  sacerdotal  celi- 
bacy, though  for  centuries  priests  are  not  absolutely  for- 
bidden to  marry.     Thus  in  England,  at  any  rate  until  the 

1  Pollock  and  Maitland,  Hist.  Eng.  Law,  II,  383.  Compare  the  excellent  ac- 
count of  the  canonical  conception  of  marric<?e  in  ESMEIN,  Le  mariage  en  droit  cano- 
nique,  1, 63-92.  "  Enfln,  le  mariage  §tant  congu  comme  un  remade  h,  la  concupiscence, 
le  droit  canonique  sanctionnait,  avec  une  6uergie  toute  particulifere,  I'obligation  du 
devoir  conjugal,  non  seulement  dans  \e  forum  internum,  mais  encore  devant  le  forum 
externum.  De  IS.  toute  une  s6rie  de  regies  que  les  canonistes  du  moyen  age  exposaient 
avec  une  precision  minutieuse  et  une  innocente  impudeur,  et  qu'il  est  parfois  assez 
diflBcile  de  rappeler,  aujourd'hui  que  les  mceurs  ont  chang6  et  que  Ton  n'6crit  plus 
en  latin."— /6id.,  84,  cited  also  by  Polloi;k  and  Maitland,  II,  383.  It  is  well,  for 
instance,  that  the  editors  of  the  Ante-Nicene  Fathers  have  concealed  the  "  innocent 
immodesty  "  of  Clement  of  Alexandria  {The  Instructor ,  c.  x,ibid.,  II,259ff. ;  Stromata, 
Book  III,  ibid.,  II,  381  ff.)  in  the  Latin  version.  The  indecency  of  the  Penitentials  is  so 
shocking  as  almost  to  justify  Gibbon's  severe  epigram  that  in  them  "  some  sins  are 
enumerated  which  innocence  could  not  have  suspected,  and  others  which  reason 
cannot  believe."  —  Decline  and  Fall,  chap.  Iviii,  1070.  "I  know  of  no  more  fatal 
sources  of  antichristian  error,"  says  Kemble  of  the  Penitentials,"  no  more  miser- 
able records  of  the  debasement  and  degradation  of  human  intellect,  no  more  fright- 
ful proofs  of  the  absence  of  genuine  religion." — Saxons,  II,  403,  404.  See  the  Poeni- 
tentiale  Theodori,  lib.  i,  c.  ii :  Haddan  and  Sttjbbs,  Councils,  III,  178, 179 ;  and  espe- 
cially Wasseeschleben's  excellent  collection  of  Bussordnungen. 

The  monstrous  indecencies  of  the  mediaeval  confessional  are  revealed  by  BotrVET, 
Be  la  confession  et  du  cdlibat  des  prHres,  195  ff.  On  the  other  hand,  a  word  of  justifi- 
cation may  be  found  in  Ellis,  Psychology  of  Sex,  I,  pp.  viii-ix. 

2  The  Council  of  Trent  declared  marriage  to  be  a  sacrament,  but  did  not  settle 
the  medieeval  dispute  as  to  the  relation  of  its  different  elements.  A  strong  party 
held  that  it  is  necessary  to  distinguish  between  the  contract  and  the  sacrament.  The 
church  might  regulate  the  former  and  not  the  latter,  for  it  was  established  by  Christ 
himself.  This  doctrine  would  logically  have  led  to  civil  marriage,  which  the  council 
was  not  ready  to  sanction.  "  In  every  sacrament  a  distinction  is  made  between  the 
minister,  that  is  the  agent  who  produces  the  sacrament,  and  its  materia,  the  objective 
or  real  content."  From  this  distinction  arose  an  important  controversy;  one  party 
regarding  the  priest,  and  the  other  the  parties,  as  the  minister  of  the  sacrament. 
According  to  the  former  theory,  which  was  adopted  by  the  French  church,  the  bare 
consent  of  the  parties  constituted  the  contract,  and  the  marriage  gained  its  sacra- 
mental character  later  through  the  priestly  benediction.  The  form  of  valid  contract 
as  a  temporal  matter  may  therefore  be  determined  by  the  state.    As  a  direct  conse- 


I 


X  Rise  of  Ecclesiastical  Marriage  327 

days  of  Dunstan,  celibacy  had  not  been  strictly  enforced  in 
the  monastic  bodies  ;*  and  until  a  still  later  day  marriage  was 
practiced  by  the  secular  clergy/  the  priestly  office  in  some 
instances  practically  becoming  hereditary,  passing  on  from 
father  to  son.^  But  in  the  western  church  asceticism  at  last 
gained  a  complete  victory ;  and  the  priest  taking  orders  after 
marriage  was  obliged  to  put  away  his  wife;  while  in  both 
East  and  West  marriage  after  the  taking  of  orders  was  for- 

qnence  of  this  doctrine  in  the  eighteenth  century  civil  marriage  arose  in  France: 
Feiedbeeg,  Geschichie  der  Civilehe,  26-29;  idem,  Eheschlicssung,  546  ff.,  509  £f.  Cf. 
Salis,  Publikation  des  trid.  Bechts,  46  ff. ;  Riedler,  Bedingte  Eheschliessung,  12, 
18  £f.;  EsMEiN,  Le  mariage  en  droit  canonique,  I,  78  ff. ;  II,  159  fl.  The  modern 
Catholic  church  rejects  the  doctrine  that  there  can  be  a  distinction  between  the 
contract  and  sacrament,  the  parties  being  the  ministers  of  the  sacrament.  Yet  in 
effect  a  distinction  is  really  made.  The  benediction,  we  are  told,  is  not  "  necessary 
in  order  to  the  validity  of  the  sacrament;  but  it  is  the  presence  of  the  parish  priest, 
which  is  a  necessary  condition  sine  qu&  non  in  order  to  the  validity  of  the  con- 
tract."—Humphrey,  Christian  Marriage,  70  ff.,  73  ff.;  Oswald,  Die  dogmat.  Lehre 
von  den  heil.  Sakramenten,  II,  501  ff.  On  this  controversy  see  especially  Richter, 
Lehrbuch,  1047-49;  Meueek,  "Die  rechtl.  Natur  des  trid.  Matrimonialdecrets," 
ZKR.,  XXII;  and  Schdlte,  "Die  Statthaftigkeit  der  CivUehe  nach  kath.  Grund- 
satzen,"  ibid.,  XI,  holding  that  the  action  of  the  Council  of  Trent  regarding  the 
marriage  contract  is  not  dogmatic  in  character,  and  that  hence  the  state,  without 
violating  Catholic  doctrine,  may  rightly  institute  a  compulsory  civil  marriage  form. 
Compare  RoskovAny,  De  matrimonio  in  ecc.  cath.,  35-42;  Peeeone,  De  matrimonio 
Christ.,  I,  46-159. 

iKemble,  Saxons,  II,  434  ff.,  454,  455;  Lingaed,  Hist.  Anglo-Saxon  Church,  I, 
156-62;  II,  235  ff.,  260  ff. ;  Stubbs,  Const.  Hist.,  I,  224;  Theinee,  Die  EinfUhr.  der  erz. 
Ehelosigkeit,  I,  267-69. 

2  In  376  "  a  Gallic  synod  excommunicated  those  who  should  refuse  the  ministra- 
tions of  a  priest  on  the  ground  of  his  marriage,"  though  this  need  not  imply  that  the 
church  resisted  celibacy :  Kemble,  Saxons,  II,  441.  Married  priests  were  still  allowed 
in  the  western  church  in  961.  "  The  priests  were  enjoyned  not  to  marry  without  the 
leave  of  the  Pope,  on  which  account  a  great  disturbance  took  place  in  the  diocese  of 
Teilaw,  so  that  it  was  considered  best  to  allow  matrimony  to  the  priests." — "Brut  y 
Twigsog.,"  in  Haddan  and  Stubbs,  Councils,  I,  286.  For  England  there  is  abundant 
evidence  of  the  marriage  of  priests,  sometimes  of  bishops,  even  as  late  as  the  twelfth 
century:  Kemble,  op.  cit.,  II,  443  ff.;  Haddan  and  Stubbs,  op.  cit..  Ill,  19  (temp, 
Gregory);  II,  178  (Scotland);  Ij^k,  Sacerdotal  Celibacy,  147,  159  ff.,  197  (concubines), 
271  ff. ;  Theinee,  op.  cit.,  II,  183  ff. ;  Lingaed,  Hist.  Anglo-Saxon  Church,  I,  156-62; 
II,  235,  who  thinks  at  first  the  rule  of  celibacy  was  enforced;  Stubbs,  Const.  Hist.,  I, 
223,224,  notes;  Ellis,  Int.  to  Domesday,  I,  342  (two  examples,  an.  1086) ;  especially  the 
excellent  discussion  of  celibacy  in  England  by  Makowek,  Const.  Hist.  Eng.  Church, 
212i-2i,  where  the  sources  are  cited. 

3 Stubbs,  Const.  Hist.,  I,  243,  244,  notes;  Cod.  Dipt.,  xxxiii,  cxlvi,  ccxv,  Ixxx, 
cxxvii,  Ixxxii,  cxxiv,  clxix ;  Haddan  and  Stubbs,  op.  cit.,  II,  178  (Scotland) ; 
Theinee,  op.  cit.,  I,  321-47. 


328  Matrimonial  Institutions 

bidden.'  The  causes  of  the  low  esteem  in  which  marriage 
was  held  by  the  early  Christian  theologians  have  been 
well  described  by  Meyrick.  "For  some  time  before  the 
Christian  era  a  change  of  sentiment  as  to  the  relative  excel- 
lence of  the  married  and  single  life  had  been  growing  up 
among  a  section  of  the  Jews.  The  national  feeling  was 
strongly  in  favour  of  marriage,  and  a  man  who  was  unmar- 
ried or  without  children  was  looked  upon  as  disgraced.  But 
the  spirit  of  asceticism,  cherished  by  the  Essenes,  led  to  an 
admiration  of  celibacy,  of  which  no  traces  are  to  be  found 
in  the  Old  Testament ;  so  that,  instead  of  a  shame,  it  became 
an  honour  to  be  unmarried  and  childless.  In  the  early 
church  this  spirit,  at  first  exhibiting  itself  only  to  be  con- 
demned in  the  Encratites,"  and  some  other  sects,  "struggled 
with  a  healthier  feeling,  till  at  length  it  stifled  the  latter. 
But  another  cause  was  working  in  the  same  direction.  The 
days  of  chivalry  were  not  yet;  and  we  cannot  but  notice, 
even  in  the  greatest  of  the  Christian  fathers,  a  lamentably 
low  estimate  of  woman,  and  consequently  of  the  marriage 
relationship.  Even  St.  Augustine  can  see  no  justification 
for  marriage,  except  in  a  grave  desire  deliberately  adopted 
of  having  children.""     If  "marriage  is  sought  after  for  the 

1  After  centuries  of  struggle  and  divergent  practice,  this  was  decreed  by  the 
Boman  council  under  Nicholas  II.,  1059;  and  by  the  first  Lateran  council  under 
Calixtus  II.,  1123:  Meyeick,  in  Diet.  Christ.  Ant.,  II,  1100;  Hard.  Concil.,  torn,  vi, 
1052;  vii,  1111.  "The  eastern  church  has  never  forbidden  marriage  before  ordina- 
tion to  its  presbyters,  and  has  never  laid  upon  them  the  burden  of  abstinence  from 
their  wives;  and  there  is  no  doubt  that  the  eastern  discipline  in  this  respect  was  the 
discipline  of  the  whole  of  the  early  church."  But  eventually,  in  the  East  as  well  as 
the  West,  bishops  were  forbidden  to  have  wives :  Meyeick,  op.  cit.,  1098, 1099,  where 
the  sources  are  cited  on  the  whole  subject  of  the  rise  of  celibacy.  Cf.  Zhishman,  Das 
Eherecht  der  orient.  Kirche,  16511.,  449  ff. ;  Lyndwood,  Provinciate  (ed.  1505),  foU. 
xc-xcv;  LiNGAED,  Hist.  Anglo-Saxon  Church,  I,  156  ff. ;  Kemble,  Saxons,  II,  439 ff.; 
ScHTLTE,  Der  COlibatszwang,  5ff. ;  Becherches phil.  et  hist,  sur  le  cHibat,  147 ff.;  Lea, 
Sacerdotal  Celibacy,  .59 ff.;  Thwing,  The  Family,  74  ff.;  Gage,  Woman,  Church,  and 
State,  49  ff.,  55  ff. ;  Nisbet,  Marriage  and  Heredity,  44  ff. 

2  Citing  Augustine,  Serm.  ix,  li,  Op.,  tom.  v,  pp.  88,  345,  ed.  Migne.  Augustine's 
view  is  that  of  the  earlier  Fathers;  see  the  references  in  n.  2,  p.  325,  above,  to  which 
many  more  might  be  added.  Cf,  Esmein,  Le  mariage  en  droit  canonique,  I,  83-87; 
Theinee,  Die  EinfUhrung  der  erz.  Ehclosigkeit,  I,  23 ff.  (teachings  of  the  "heretical 
sects"),  81  (teachings  of  the  "-Fathers");  Becherches  phil,  et  hist,  sur  le  cilibat, 
177 ff.  (doctrines  of  the  early  "heretics"). 


Rise  op  Ecclesiastical  Marriage  329 

sake  of  children,  it  is  justifiable ;  if  entered  into  as  a 
remedium  to  avoid  worse  evils,  it  is  pardonable;  the  idea  of 
*the  mutual  society,  help,  and  comfort,  that  the  one  ouf^ht  to 
have  of  the  other,  both  in  prosperity  and  adversity,'  hardly 
existed  and  could  hardly  yet  exist.'  In  the  decline  of  the 
Roman  empire,  woman  was  not  a  helpmeet  for  man,  and  few 
traces  are  to  be  found  of  those  graceful  conceptions  which 
western  imagination  has  grouped  round  wedded  love  and 
home  affections.  The  result  was  that  the  gross,  coarse, 
material,  carnal  side  of  marriage  being  alone  apprehended, 
those  who  sought  to  lead  a  spiritual  life,  that  is,  above  all, 
the  clergy,  instead  of  'adorning  and  beautifying  that  holy 
estate '  and  lifting  it  up  with  themselves  into  a  higher  sphere 
and  purer  atmosphere,  regarded  it  rather  as  a  necessary  evil 
to  be  shunned  by  those  who  aimed  at  a  holier  life  than  that 
of  the  majority."" 

But,  in  spite  of  theology  and  priestly  asceticism,  there  is 
little  doubt  that  the  loftier  ideals  and  the  gentler  affections 

1  In  the  Stroniata,  c.  xxiii :  Ante-Nicene  Fathers,  II,  378,  Clement  of  Alexan- 
DEIA  approaches  the  loftier  view  of  marriage.  "  Philosophers  "  are  "  to  take  advan- 
tage of  marriage  for  help  in  the  whole  of  life,  and  for  the  best  self-restraint."  It  is 
a  "sacred  image;"  and  " every  foul  and  polluting  practice"  must  be  purged  away 
from  it. 

2  Meyeick,  in  Diet.  Christ.  Ant.,  II,  1198.  The  early  theological  conception  of 
marriage  is  much  lower  than  that  of  the  mature  Roman  law :  "  Nuptiae  sunt  con- 
junctio  maris  et  feminao  et  consortium  omnis  vitae,  divini  et  humani  juris  commu- 
nicatio":  Modestinus,  in  Digest,  xxiii,  tit.  2,  1.1:  Corpus  juris  civilis,  1,  295.  Cf. 
Feeisen,  Geschichte  des  can.  Ehcrechts,  22.  As  if  to  emphasize  the  paradoxical 
nature  of  the  prevailing  dogma,  the  Council  of  Trent  anathematizes  those  who  say 
"  that  matrimony  is  not  truly  and  properly  one  of  the  seven  sacraments ;"  as  well  as 
those  who  say  "  that  the  marriage  state  is  to  be  placed  above  the  state  of  virginity, 
or  of  celibacy,  and  that  it  is  not  better  and  more  blessed  to  remain  in  virginity,  or  in 
celibacy,  than  to  be  united  in  matrimony."— Wateewoeth,  Canons  and  Decrees,  194, 
19.').  The  Reformation  Fathers  constantly  reproach  their  Roman  antagonists  with 
this  anomaly  and  with  having  debased  the  state  of  marriage  which  is  right  for  all 
according  to  the  law  of  God  and  nature :  see  the  Parker  Society  collection  of  the 
Works  of  Fathers  aiidJEarly  Writers  of  the  Reformed  English  Church,  General  Index, 
aF*'  Marriage,"  &li)-17.  Cf.  the  curious  boo¥of  Madan,  Thclyphthora,  or  a  Treatise 
on  Female  Suin  (2d  ed..  London,  1781),  who  endeavors  to  show  that  sacerdotal  celi- 
bacy, the  theory  of  impediments,  and  the  invention  of  the  sacrament  of  matrimony 
have  lowered  the  ideal  of  marriage  which  is  an  institution  divinely  ordained  for  all 
men.  He  brings  together  in  convenient  form  for  reference  a  mass  of  extracts  from 
the  teachings  of  the  Fathers,  the  papal  and  conciliar  decrees,  the  utterances  of  the 
schoolmen,  and  other  sources. 


330  Matrimonial  Institutions 

which  we  now  associate  with  wedded  life  were  beginning  to 
make  themselves  felt  in  the  early  Christian  family ;  just  as 
despite  the  licentiousness  found  in  the  imperial  and  noble 
circles  of  the  capital,  most  observed  and  doubtless  exag- 
gerated by  historian  and  satirist,  and  notwithstanding  the 
surviving  coldness^  of  the  patriarchal  age,  the  same  ideas 
and  sentiments,  independently  of  Christian  influences,  must 
already  have  been  springing  up  among  the  common  people 
of  the  provinces,  and  presently  in  the  Stoic  families  of  the 
Antonine  era  were  to  reach  a  splendid  development  worthy 
of  the  days  in  which  we  live.^  It  is  doubtless  true,  as  so 
often  urged,  that  there  is  a  bright  side  to  the  history  of  celi- 
bacy. Incidentally  the  monk  organized  schools,  taught  the 
barbarous  tribes  the  dignity  of  labor,  demonstrated  the  power 
of  industry,^  and  handed  down  to  the  men  of  the  Renaissance 
some  of  the  materials  of  classic  learning.  So,  likewise,  the 
convent  afforded  an  outlet  for  the  energy  and  the  ambition  of 
woman.  Here  in  a  large  measure  she  enjoyed  independence 
and  could  assert  her  individuality.  '  "For  the  convent 
accepted  the  dislike  women  felt  to  domestic  subjection  and 
countenanced  them  in  their  refusal  to  undertake  the  duties 
of  married  life."  The  "outward  conditions  of  life  were  such 
that  the  woman  who  joined  the  convent  made  her  decision 
once  for  all.  But  provided  she  agreed  to  forego  the  claims 
of  family  and  sex,  an  honorable  independence  was  secured  to 
her,  and  she  was  brought  into  contact  with  the  highest  aims 
of  her  age.  At  a  period  when  monasteries,  placed  in  the 
remote  and  uncultivated  districts,  radiated  peace  and  civili- 
zation throughout  the  neighborhood,  many  women  devoted 
themselves  to  managing  settlements  which,  in  the  standard 
they  attained,  vied  in  excellence  with  the  settlements  man- 

iFaeeae,  Seekers  after  God,  10  ff. 

2 Capes,  JSarZy -Empire,  223  £E.,  discusses  the  exaggeration  of  the  satirists;  and 
in  his  Age  of  the  Antonhies,  85,  86,  89,  90, 117  ff.,  he  describes  the  family  life  of  Marcus 
Aurelius  and  analyzes  his  meditations. 

3TAINE,  Ancient  Regime,  1-5. 


Rise  op  Ecclesiastical  Marriage  331 

aged  by  men."  "The  career  open  to  the  inmates  of  convents 
both  in  England  and  on  the  continent,"  continues  Eckenstein, 
in  summarizing  the  results  of  her  valuable  researches,  "was 
greater  than  any  other  ever  thrown  open  to  women  in  the 
course  of  modern  European  history.'"  Still,  granting  all 
that  can  be  said  for  the  conventual  life,  the  motives  which 
sustained  it  only  throw  into  bolder  relief  the  social  evils  of 
the  age  and  the  low  ideal  of  marriage  fostered  by  asceticism 
itself.  History  all  too  plainly  shows  that  the  benefits  con- 
ferred by  monasticism  and  the  enforced  celibacy  of  the  secu- 
lar clergy  come  far  short  of  balancing  the  evils  flowing  from 
the  conception  of  wedlock  as  a  "  remedy  for  concupiscence." 
The  influence  of  the  church  did,  indeed,  tend  to  condemn 
the  breach  of  conjugal  fidelity  by  the  husband  as  equally  sin- 
ful with  that  of  the  wife;  although  this  righteous  principle 
has  by  no  means  always  been  observed  in  Christian  legisla- 
tion. On  the  other  hand,  celibacy  bred  a  contempt  for 
womanhood  and  assailed  the  integrity  of  the  family.^     The 

1  Eckenstein,  Woman  under  Monasticism,  5,  478.  This  important  and  very 
interesting  book  throws  much  new  light  on  the  position  of  woman  in  the  Middle 
Ages.  The  convent  was  a  refuge  from  the  "  tyranny  "  of  the  family ;  and  the  author 
believes  that  the  desire  for  independence  was  a  survival  of  the  "mother-age." 
The  woman  saint  is  thus  a  successor  of  the  "tribal  goddess"  and  the  "heathen 
prophetess." 

2The  doctrine  that  woman  was  the  cause  of  the  "  original  sin  "  arose  among  the 
early  fathers  of  the  church,  and  it  was  well  established  by  the  time  of  Augustine.  At 
the  Council  of  Macon  (585)  the  question,  "  Does  woman  possess  a  soul  1 "  was  seriously 
discussed.  "  Upon  one  side  it  was  argued  that  woman  should  not  be  called  '  homo; ' 
upon  the  opposite  side  that  she  should,  because,  yij-st,  the  Scriptures  declared  that 
God  created  man,  male  and  female ;  second,  that  Jesus  Christ,  son  of  a  woman,  is 
called  the  son  of  man.  Christian  women  were  therefore  allowed  to  remain  human 
beings  in  the  eyes  of  the  clergy,  even  though  considered  very  weak  and  bad  ones." 
—  Gage,  Woman,  Church,  and  State,  56. 

Nevertheless  for  many  this  problem  remained  for  centuries  a  topic  for  theologi- 
cal debate.  In  1595  appeared  Acidalius's  Disputatio  nova  contra  niulieres,  qua  pro- 
batur  eas  homines  iwn  esse.  In  the  same  year  it  was  republished,  with  an  answer, 
by  Simon  Geddicus  under  the  common  title,  Disputatio perjucunda,  qua  anonymus 
probare  nititur  m,uUeres  homines  non  esse:  cui  opposita  est  Simonis  Geddici  sacros. 
theologiae  doctoris  dcfensio  sexus  muliebris  (editio  novissima,  Hagae-Comitis,  1644). 
At  the  end  Simon  writes :  "  Scriptum  Halae  Saxonum,  10.  Februarii,  Anno  Filii  Dei 
nati,  Hominis  veri,  ex  Maria  Virgine,  homine  vera,  1595." 

Still  later  (1667)  Feyeeabend,  De  privilegiis  mulierum  (3d  ed.,  Jena,  1672),  2-5, 
starts  with  the  inquiry,  "  an  mulieres  sint  homines  1 " 


332  Matrimonial  Institutions 

gross  immorality  of  the  mediaeval  clergy,  regular  and  secu- 
lar, and  the  shocking  abuses  of  the  confessional  have  often 
been  recorded  and  fortunately  need  not  here  be  dwelt  upon.' 
We  may  next  consider  the  second  member  of  the  paradox, 
the  dogma  which  constitutes  the  very  basis  of  the  canon 
law  of  marriage  and  the  source  of  manifold  hardships  and 
confusion.  By  the  second  half  of  the  twelfth  century  the 
doctrine  that  marriage  is  a  sacrament  was  thoroughly  estab- 
lished in  the  western  church.^  The  early  Christian  teachers 
had,  indeed,  regarded  it  as  one  of  the  many  holy  "  mysteries" 
to  which  the  name  "sacrament"  was  given.^  But  it  was  long 
before  any  of  these  were  differentiated  as  distinct  rites  supe- 
rior to  the  rest  in  religious  efficacy.  Not  until  1164:,  in  the 
fourth  book  of  Peter  Lombard's  Sentences,  do  we  find  the 
first  clear  recognition  of  the   "seven  sacraments,"   among 

1  For  details  consult  Theiner,  Die  Einfilhrung  der  erz.  Ehelosiglceit,  I,  44  ff., 
54-60, 167  ff.,  239,  296,  passim;  II,  183-209;  III,  96-148  (contemporary  evidence  for  the 
period  1448  to  the  Eeformation),  305  ff.  (influence  of  the  Jesuits  on  morals)  ;  Lea, 
Sacerdotal  Celibacy,  78  ff.,  109  ff.,  115  ff.,  129, 135  ff.,  161-77,  330-61,  566-80  (abuse  of  the 
confessional,  especially  since  the  Council  of  Trent),  631  ff. ;  idem.  Hist,  of  Auricular 
Confession,  I,  378-400  (solicitations),  240  ff.,  261,  272,  426  ff. ;  Lecky,  Hist,  of  European 
Morals,  II,  120  ff.,  148  ff.,  316-72;  Hcth,  Marriage  of  Near  Kin,  108  ff.;  the  vigorous 
arraignment  of  the  church  and  the  canon  law  for  their  alleged  degrading  influence 
on  woman  by  Gage,  Woman,  Church,  and  State,  49  ff.,  113  ff.,  152  ff. ;  and  idem,  in 
Hist,  of  Woman  Suffrage,  I,  753-99.  For  the  opposite  view  read  Christian  Marriage, 
by  Rev.  William  Humpheey,  S.  J. ;  Zimmeemann,  Der  Priester-COlibat,  11  ff. ;  Gide, 
ia/emme,  169-82;  and  compare  Thwing,  The  Family,  45  ff . ;  Letters  on  the  Const. 
Celibacy  of  the  Clergy,  266  ff.,  294  ff. ;  and  Bouvet,  De  la  confession  et  du  cHibat  des 
prStres,  195-238,  containing  extracts  from  Buechaed's  Decretorum,  showing  the  abomi- 
nable questions  put  to  women.  For  the  literature  relating  to  celibacy  (to  1887) 
see  especially  RoskovAny's  Coelibaius  et  breviarium  (13  vols.,  1861-88),  enumerating 
6,785  books,  essays,  and  articles  on  the  subject,  of  which  (according  to  Theineb,  op. 
cit..  Ill,  379)  3,285  are  antagonistic. 

2  Thoroughly  to  appreciate  the  nature  of  the  controversy  over  the  sacramental 
nature  of  marriage  the  writings  of  the  Reformation  Fathers  should  be  studied.  See 
General  Index  to  the  Parker  Society  publications ;  and  cf.  Madan's  Thelyphthora, 
already  mentioned. 

3  The  early  Fathers  render  the  Greek  /u,v<7T^piov  by  sacramentum,,  which  is  defined 
by  St.  Augustine  as  "the  visible  form  of  invisible  grace,"  or  "a  sign  of  a  sacred 
thing":  Encyc.  Brit.,  XXI,  131.  Cf.  also  Feiedbeeg,  Eheschliessung,  153, 154;  Feei- 
SEN,  Geschichte  des  can.  Eherechts,  29  ff . ;  Zhishman,  Da^  Eherecht  der  orient.  Kirche, 
124  ff. ;  Oswald,  Die  dogmat.  Lehre  von  den  heil.  Sakramenten,  1,  25  ff. ;  Peeeone, 
De  mat.  christ.,  I,  1-21;  Schulte,  Lehrbuch,  349;  Richtee,  Lehrbuch,  1044,  1045; 
Thwing,  The  Family,  81 ;  and  the  monograph  of  Baiee,  Die  Naturehe  in  ihrem  Ver- 
hdltniss  zur  christlich-sakranientalen  Ehe ;  Amat,  Treatise  on  Matrimony,  3  ff . 


Rise  of  Ecclesiastical  Marriage  333 

which  that  of  marriage  appears ;'  and  these  were  approved 
by  the  Council  of  Florence  in  1439  and  later  by  the  Council 
of  Trent. '^  The  theory  of  the  sacramental  character  of  wed- 
lock had  two  consequences  of  vast  importance  for  the  history 
of  matrimonial  law.  First  is  the  dogma  of  the  indissolu- 
bility of  the  marriage  bond,  involving  the  whole  problem  of 
separation  and  divorce,  which  must  be  reserved  for  discussion 
in  another  chapter;*  and,  second,  the  exclusive  jurisdiction 
of  the  church  in  matrimonial  causes.*  This  ecclesiastical 
function,  like  so  many  others,  is  of  slow  growth.  "  We  are 
here  confronted  by  a  conception  which  certainly  does  not 
belong  to  the  primitive  sources.  It  is  not  by  a  revindication 
of  principles  that  the  church  conquers  jurisdiction  in  mar- 
riage. After  having  shared  it  with  the  state  for  centuries, 
she  obtained  it  in  the  Middle  Ages  without  partition  ;"  and 
"when  her  competence  was  well  established  and  a  theory 
for  it  was  required,  it  was  justified  by  saying  that  the  church 
alone  could  take  cognizance  of  sacraments;"  and  "at  the 
Council  of  Trent  when  this  jurisdiction  was  solemnly  affirmed 
in  a  canon  sanctioned  by  anathema,  the  majority  of  the 
orators  brought  it  expressly  into  connection  with  the  sacra- 
ment."^ In  England  between  the  seventh  and  the  twelfth 
centuries  the  ecclesiastical  authority  in  matrimonial  ques- 
tions was  slowly  established.  Gregory  writes  to  Augustine 
concerning  forbidden  degrees.^  Later  Theodore  regulates 
marriage  and  divorce.'     "When  the  conqueror  had  paid  the 

iSee  the  incunabula  edition  of  Peteus  Lombaedus,  Textus  sententiarum  (1488). 
Cf.  Madan,  Thelyphthora,  HI,  262;  Nisbet,  Marriage  and  Heredity,  46;  Feeisen, 
Geschichte  des  can.  Eherechts,  34  fE. ;  Oswald,  Die  dogmat.  Lehre  von  den  heil.  Sakra- 
menten,  I,  29;  II,  458  £E. ;  CiGOi,  UnauflOsbarkeit,  107  ff. ;  Peeeone,  De  mat.  Christ.,  I, 
22  ff. 

^Encyc.  Brit.,  XXI,  132;  Wateewoeth,  Canons  and  Decrees,  193-96. 

3  See  chap,  xi,  below. 

*For  the  growth  of  ecclesiastical  jurisdiction  in  the  West  see  Esmein,  Z-e  wio- 
riage  en  droit  canonique,  I,  chap.  i. 

^Ibid.,  73, 74,  where  the  sources  are  cited;  Wateewoeth,  Canons  and  Decrees,  196. 

6HADDAN  AND  Stubbs,  Councils,  III,  20.  t Ibid.,  199-202. 


334  Matrimonial  Institutions 

debt  that  he  owed  to  Rome  by  a  definite  separation  of  the 
spiritual  from  the  lay  tribunals/  it  cannot  have  remained 
long  in  doubt  that  the  former  would  claim  the  whole  province 
of  marriage  law  as  their  own.  In  all  probability  this  claim 
was  not  suddenly  pressed  ;  the  leges  HenricP  endeavor  to 
state  the  old  law  about  adultery ;  the  man's  fine  goes  to  the 
king,  the  woman's  to  the  bishop;  but  everywhere  the  church 
was  beginning  to  urge  that  claim,  and  the  canonists  were 
constructing  an  elaborate  jurisprudence  of  marriage.  By 
the  middle  of  the  twelfth  century,  by  the  time  when  Gratian 
was  compiling  his  concordance  of  discordant  canons,  it  was 
law  in  England  that  marriage  appertained  to  the  spiritual 
forum. "^  From  the  time  of  Glanville  the  "marriage  law  of 
England  was  the  canon  law."* 

The  theories  adopted  and  developed  by  the  canonists 
favor  the  forming  of  marriages.  "All  those  are  urged  to 
marry  who  are  unable  to  bear  the  superior  state  of  virginity 
or  continence  and  who  are  not  restrained  by  solemn  vows." 
Consequently  the  canon  law  "renders  the  formation  of  mar- 
riage as  easy  as  it  had  rendered  its  dissolution  diflBcult."^ 
At  first,  as  already  explained,  it  adopted  the  Roman  be- 
trothal, which  possessed  no  legal  significance,  the  marriage 

1  On  the  separation  of  the  lay  and  spiritual  jurisdictions  see  Stdbbs,  Const.  Hist., 
1,300,307;  idem.  Select  Charters,  S'i ;  idem.  Lectures,  300.  Schmid,  Gesetze,  357,  and 
Thorpe,  Anc.  Laivs,  II,  213,  give  William's  law,  the  date  of  which  is  unknown.  See 
also  Makowee,  Const.  Hist,  of  English  Church,  465,  406,  392  ff. 

"i  Leges  Henrici  Primi,  11,  §  5. 

3  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  363.  The  Concordia  discordan- 
tium  canonum,  or  Decree  of  Gratian,  comprises  the  first  volume  of  Richtee  and 
Feiedbeeg's  fine  edition  of  the  Corpus  juris  canonici  (Leipzig,  1879).  The  bringing 
together  of  the  scattered  rules  of  the  ecclesiastical  authorities  by  Ivo  of  Chartres  in 
the  reign  of  Henry  I.,  and  especially  by  Gratian  (1151),  was  of  vast  importance  in 
building  up  the  ecclesiastical  jurisdiction.  On  the  history  of  the  canon  law  see 
Stubbs,  Lectures,  292-333 ;  idem.  Const.  Hist.,  I,  308  ff. ;  Dodd,  Hist.  Canon  Law,  150  ff., 
161  ff.;  Blackstone,  Commentaries,  1, 14, 15, 19;  Esmein,  Le  mariage  en  droit  cano- 
nique,  I,  3ff,,56ff.,108ff.  The  best  account  of  the  rise  and  jurisdiction  of  ecclesiastical 
courts  in  England  will  be  found  in  Makowee,  Const.  Hist,  of  Eng.  Church,  384-464. 

*  Pollock  and  Maitland,  op,  cit.,  II,  365,  366;  Gkak-j,  Marriage  and  Family 
Relations,  1  ff . 

5  Esmein,  op.  cit.,  1, 85. 


Rise  op  Ecclesiastical  Marriage  335 

beginning  with  the  nuptials  or  actual  living  together.  Later 
it  accepted  the  principles  of  Germanic  custom,  according  to 
which  the  legal  effects  of  betrothal  became  far  more  stringent, 
and  the  marriage  was  perfected  at  the  nuptials  or  tradition, 
and  not  through  the  Beilager,  or  physical  union.  Hence  by 
the  mediaeval  canon  law,  if  the  nuptials  were  solemnized  by 
priestly  benediction,  though  not  followed  by  copula  or  phy- 
sical union,  a  marriage  was  formed  which  could  not  be  an- 
nulled by  means  of  subsequent  espousals  thus  consummated.' 
Gradually,  however,  as  the  betrothal  gained,  the  nuptials 
lost,  in  importance.  Before  the  middle  of  the  twelfth  cen- 
tury the  doctrine  prevailed  that  the  copula  carnalis  is 
the  supreme  legal  moment  in  marriage.^  This  theory,  which 
had  arisen  with  Hincmar  of  Rheims,*  is  especially  associated 
with  the  name  of  Gratian,  in  whose  Decretum  the  argu- 
ments for  and  against  it  are  weighed,  with  the  result  of  its 
practical  acceptance,  though  he  tries  to  reconcile  it  with  the 
Roman  view,  that  the  nuptial  consensus  constitutes  the  mar- 
riage.* According  to  him,  there  are  two  degrees  in  mar- 
riage :  one  is  the  conjugium  initiatum,  arising  in  the  simple 
consent  of  the  espoused;  second,  the  conjugium  ratum, 
created  by  the  copula  carnalis  and  perfecting  the  former. 
The  conjugium  initiatum  may  be  dissolved  at  pleasure ;  but 
the  conjugium  ratum  is  indissoluble.     Thus  the  former  is 

1  This  is  the  view  established  by  Sohm,  Eheschliessung.,  particularly  120  n.  22, 
151  n.  89.  Compare  Sehling,  Unterscheidung  der  VerWbniase,  1  £F.,  14  ff.,  34  ff.; 
ScHEUEL,  Kirch.  Eheschliessung srecht,  35  ff. 

2  Sohm,  op.  cit.,  150-52;  idem,  Trauung  und  Verlobung,  61  ff. ;  Fbiedbekg,  Ehe- 
schliessung, 209;  ESMEIN,  op.  cit.,  I,  83.  Riedler,  Bedingte  Eheschliessung,  15  ff.,  dis- 
cusses the  different  views  as  to  the  relation  of  consensus  and  the  copula  carnalis,  in 
connection  with  the  sacramental  nature  of  marriage.  See  also  Feeisen,  Ge- 
schichte  des  can.  Eherechts,  151  ff.,  164  ff.,  on  the  whole  subject. 

3  Sehling,  Unterscheidung  der  Verlobnisse,  33-59. 

*  Geatian,  Decreti  sec.  pars,  causa  xxvii,  quest,  ii,  c.  16  ff. :  Richter  and 
Feiedbeeg,  Corpits  juris  canonici,  I,  1069  ff.  Cf.  Esmein,  op.  cit.,  1,91-119;  Sohm, 
Eheschliessung,  HI  S. ;  Feeisen,  op.  c/^.,  164  ff. ;  Scheurl,  op.  c/t.,  .58-75;  Sehling, 
op.  cit.,  81  ff. ;  Heuslee,  Institutionen,  11,290;  Dieckhoff,  Die  kirch.  Trauung, 
U5ff. 


336  Matrimonial  Institutions 

merely  the  Roman  betrothal  under  another  name.  But  the 
Bolognese  jurists  made  it  more  stringent,  assigning  eight 
reasons  for  which  alone  such  a  marriage  could  be  dissolved.' 

The  theory  of  the  classic  canon  law,  formulated  by  Gra- 
tian,  that  there  is  no  marriage  "  until  man  and  woman  have 
been  one  flesh,"  ^  does  not  receive  so  much  emphasis  in  any 
other  legal  system.'  It  had  far-reaching  consequences  in 
matrimonial  jurisprudence.*  Marriage  became  a  simple 
consensual  compact.  "In  strictness  of  law  all  that  was 
essential  was  this  physical  union  accompanied  by  the  intent 
to  be  thenceforth  husband  and  wife.  All  that  preceded  this 
could  be  no  more  than  an  espousal  (desponsatio)  and  the 
relationship  between  the  spouses  was  one  which  was  dis- 
soluble ;  in  particular  it  was  dissolved  if  either  of  them  con- 
tracted a  perfected  marriage  with  a  third  person."^ 

But  before  the  close  of  the  twelfth  century  theological 
subtlety  had  conceived  and  gained  the  acceptance  of  a  dis- 
tinction in  the  forms  of  contract  which  was  fatal  to  the 
security  of  the  marriage  bond.  The  famous  classification 
of  contracts  as  sponsalia  per  verba  de  praesenti  and  spon- 
salia  per  verba  de  fiituro,  though  its  principle  was  earlier 
asserted,  is  due  mainly  to  Peter  Lombard;*  and  through  the 

1  On  the  whole  subject  see  Esmein,  op.  cit,  I,  97-119. 

2  Pollock  and  Maitland,  op.  cit.,  II,  366. 

3  Esmein,  op.  cit.,  I,  83.  Esmein  traces  the  origin  of  this  doctrine  of  the  canon- 
ists in  part  to  the  influence  of  the  "  popular  "  or  "  naturalistic  "  view  of  marriage ; 
in  part  to  certain  texts  of  the  Old  and  New  Testament  (particularly  Gen.  2:23,  24; 
1  Cor.  16:16) :  and  in  part  to  the  conception  of  marriage  as  a  remedy  for  concupis- 
cence: op.  cit,  83,  84,  97  £f.  Cf.  Pollock  and  Maitland,  op.  cit.,  II,  367  n.  1; 
Feeisen,  op.  cit.,  173. 

*  It  affected  the  "  thSorie  de  la  formation  et  de  la  dissolution  du  mariage, 
thSorie  de  la  nullity  pour  cause  d'impuissance,  th6orie  de  l'aflBnit6,  th6orie  des 
droits  et  des  devoirs  des  §poux." — Esmein  op.  cit,  I,  83. 

E>  Pollock  and  Maitland,  op.  cit.,  II,  366.  ^ 

6  Peter  Lombard  (d.  1164)  was  a  professor  in  the  University  of  Paris,  and  later 
was  ordained  a  bishop:  cf.  SOB.M.,  Eheschiiessung,  121  S.;  Esmein,  op.  ci^,  I,  119  £f. 
His  theory  is  set  forth  in  the  Sententiae,  lib.  iv,  dist.  27,28:  "  EfEciens  autem  causa 
matrimonii  est  consensus,  non  quilibet,  sed  per  verba  expressus:  nee  de  futuro  sed 
de  praesenti.  Sienim  consentiunt  in  futurum,  dicentes,  Accipiam  te  in  virum,  et  ego 


b 


Rise  of  Ecclesiastical  Marriage  337 

influence  of  Alexander  III.  ("Magister  Rolandus")  it  was 
accepted  generally  by  the  western  church.'  The  theory  of 
Lombard  represents  the  triumph  of  Gallic  theology  over 
the  doctrine  of  Gratian,  as  maintained  by  the  Italian  jurists ; 
and,  in  effect,  it  is  an  attempt  to  combine  the  principles  of 
the  Roman  with  those  of  the  German — that  is  to  say,  the 
canonical — betrothal."  In  sponsalia  de  praeseMti,  in  words 
of  the  present  tense,  the  man  and  woman  declare  that  they 
take  each  other  now,  from  this  moment  onward,  as  husband 
and  wife,  Such  a  contract  is  a  valid  marriage,  though  not 
followed  by  actual  wedded  union ;  and  since  in  theory  it  is 
a  real  marriage,  it  is  necessarily  sacramental  in  character. 
It  creates  a  bond  which  can  be  dissolved  only  with  the 
greatest  difficulty.  It  constitutes  "at  all  events  an  initiate 
marriage ;  the  spouses  are  coniuges;  the  relationship  between 

te  in  uxorem,  non  est  iste  consensus  eflBcax  cansa  matrimonii" :  dist.  27,  §3.  "  Con- 
sensus, id  est  pactio  coujugalis,  matrimonium  facit,  et  extunc  est  conjugium  etiamsi 
non  praecessit,  vel  secuta  est  copula  carnalis " :  dist.  27,  §  4,  The  consensus,  if 
expressed  by  a  verb  of  the  present  tense,  accipio  te,  constitutes  a  valid  marriage 
without  copula.  Opposed  to  this  is  a  promise,  expressed  by  a  verb  in  the  future 
tense,  accipiam  te,  which  is  binding  only  when  followed  by  copula.  Compare 
Tanceed,  Summa  de  mat,  3  ff. ;  and  see  the  masterly  discussion  of  the  history  of 
the  distinction,  in  Sohm,  op.  cit.,  chap,  iv,  and  his  Trauung  und  Verlobung,  73-109. 
Cf.  ScHEURL,  Kirch.  Eheschliessungsrecht,  76  ff. ;  DrECKHOFF,  Die  kirchl.  Trauung, 
115  ff. ;  Sehling,  Unterscheidung  der  VerlGbnisse,  72  ff.,  115  ff. ;  Fkeisen,  Geschichte 
des  can.  Eherechts,  119  S.,  205  ff. ;  Kent,  Commentaries,  II,  87;  Bisuop,  Marriage, 
Divorce,  and  Separation,  I,  §§  313  ff.,  353 ff.;  Feiedbeeg,  Eheschliessung,  203,206; 
Stephens,  Laws  of  the  Clergy,  I,  672  ff. ;  especially  Pollock  and  Maitland,  Hist, 
of  Eng.  Law,  II,  366 ff.;  Esmein,  op.  cit.,  1,119-37;  Salis,  Die  Publikation  des  trid. 
Eechts,  2,  3. 

1  SOHil,  Eheschliessung,  124  ff. 

2 This  is  proved  by  Sohm,  op.  cif.,  chap,  iv;  idem,  Trauung  und  Verlobung, 
chap,  iii;  and  by  Esmein,  op.  cit.,  1, 119-37. 

Magister  Vacarius,  who  lived  in  England  ca.  1148-98  and  probably  taught  law 
at  Oxford,  has  a  theory  differing  from  that  of  Gratian  or  Lombard.  According  to 
him,  the  "  true  act  of  marriage,  the  act  which  marks  the  moment  at  which  the  mar- 
riage takes  place,  is  the  mutual  delivery  (traditio)  of  man  and  woman  each  to  each. 

Of  course  as  a  condition  there  must  exist  p  .pact  of  the  appropriate  kind 

Again,  as  a  condition  there  must  be  the  natural  power  of  effecting  a  carnal  union ; 
but  the  carnalis  copula  is  unessential."  The  marriage  is  made  by  the  tradition : 
Maitland,  "Magistri  Vacarii  summa  de  matrimonio,"  Law  Quart.  Rev.,  XIII, 
136-38.    In  the  same  volume,  270-87,  Maitland  publishes  the  text  of  the  Summa. 

On  the  two  kinds  of  canonical  sponsalia  see  the  dissertations  described  Id 
Bibliographical  Note  VIII. 


338  Matrimonial  Institutions 

them  is  almost  as  indisseverable  as  if  it  had  already  become 
a  consummate  marriage.  Not  quite  so  indisseverable  how- 
ever; a  spouse  may  free  himself  or  herself  from  the  uncon- 
summated  marriage  by  entering  religion,  and  such  a  mar- 
riage is  within  the  papal  power  of  dispensation."*  But  even 
the  unconsummate  marriage  de  praesenti  cannot  be  dissolved 
by  a  subsequent  marriage  which  either  party  may  contract, 
though  followed  by  wedded  union.^  Espousals  defiduro,  on 
the  other  hand,  are  a  promise  for  future  joining  in  marriage. 
Physical  union  when  preceded  by  such  a  contract  is  held  to 
constitute  a  binding  marriage.  The  canonists  went  farther 
than  this,  as  Esmein  declares,  and  "in  a  way  set  a  snare  for 
human  nature  to  beguile  the  imprudent  into  the  matrimonial 
state"  through  the  theory  of  "presumptive  marriage."  The 
copula  carnalis  was  made  a  legal  ground  for  assuming  the 
foregoing  promise  to  wed.  "The  rule  was  laid  down  that  it 
is  always  necessary  to  judge  in  favor  of  marriage  unless  the 
contrary  be  clearly  understood."^  Moreover,  the  church 
steadily  refused  to  make  the  validity  of  marriage  depend 
upon  forms  and  conditions  such  as  the  civil  law  prescribes. 
There  was  no  absolute  requirement  of  parental  consent*  or 

1  Pollock  and  Maitland,  op.  cit,  II,  366. 

2  This  doctrine  was  already  sanctioned  by  Innocent  III.  (1130-43):  Esmein,  op. 
city  1, 126. 

3  Esmein,  op.  cit.,  I,  85.    Cf.  Pollock  and  Maitland,  op.  cit.,  II,  366. 

*  The  effect  of  this  neglect  on  clandestine  marriage  is  forcibly  described  by 
LuTHEE,  Tischreden,  foil.  355,  356.  "  Dass  aber  die  Juristen  furgeben  und  anziehen 
den  Canon,  und  sagen :  Dass  der  Eltern  Autoritet,  Rath,  und  Will  wol  Ehren  halben 
mOge  dabey  sein,  aber  nicht  auss  not,  dass  es  also  sein  musste,  denn  die  Bewilligung 
derer,  die  mit  einander  wollen  Ehelich  werden,  ist  die  Substantz,  die  nOtig  ist.  Der 
Eltern  will  aber  ist  eln  accidens,  ein  zufellig  ding,  das  nur  Erbarkeit  und  Ehrenhal- 
ben  geschieht,  macht  aber  noch  hindert  nicht  die  Ehe. 

"  Es  ist  ein  Gottloser  Canon,  und  der  Canonisten  wahn  wider  Gott,  gleich  als 
ein  Buler,  der  in  der  ersten  Brunst  und  unsinnigkeit  daher  gehet,  nicht  viel  nach 
Erbarkeit  fragt.  Also  gehet  der  Eltern  autoritet,  ansehen,  gewalt,  und  gehorsam  zu 
Boden." 

On  the  marriage  of  minors  see  Selden,  Uxor  ebraica,  99-104;  Opera,  III,  605-8; 
Morgan,  Marriage,  Adultery,  and  Divorce,  I,  283  ff. ;  Laugingee,  De  consensu 
parentum,  quaest.  viii  tf. ;  Lohen,  De  parentum  ad  nuptias  a  liberis  contrahendat 
consensu  (Regiomonti,  1685). 


Rise  of  Ecclesiastical  Marriage  339 

of  a  certain  age.  All  persons  on  reaching  the  years  of 
puberty  were  declared  capable  of  wedlock  solely  on  their 
own  authority.  No  religious  ceremony,  no  record,  or  witness 
was  essential.  The  private,  even  secret,  agreement  of  the 
betrothed,  however  expressed,  was  declared  sufficient  for  a 
valid  contract.'  All  these  things  might  be  enjoined  under 
sanction  of  severe  discipline  for  their  neglect;  but  the  mar- 
riage, if  formed  without  them,  was  not  the  less  binding.  A 
puzzling  and  disastrous  antagonism  between  legality  and 
validity  was  thus  created.  Even  the  Council  of  Trent, 
while  making  the  validity  of  the  marriage  depend  upon  its 
conclusion  in  the  presence  of  a  priest  and  two  or  three 
witnesses,  declined  to  go  farther  and  give  an  equal  sanc- 
tion to  banns,  registration,  or  the  benediction,  though  these 
were  enjoined  in  its  decree.  After  the  council  as  well  as 
before  children  barely  arrived  at  the  age  of  puberty  might 
contract  a  valid  marriage  without  the  consent,  or  even 
against  the  will,  of  their  parents.^  In  short,  as  Esmein 
has  so  well  shown,  lest  without  a  safety-valve  the  temp- 
tations of  the  flesh  should  become  too  strong  for  weak 
human  nature,  and  lest  access  to  a  sacrament  should  be 
hindered,  it  was  deemed  necessary  to  discard  all  restraints 
originating  in  mere  "human  convention."^  It  is  a  note- 
worthy fact  that  the  dogma  of  marriage  as  a  sacrament 
came  near  being  a  fatal  obstacle  in  the  way  of  the  action 
of  the  Council  of  Trent  against  secret  marriages.*  For 
how  could  the  church  legislate  concerning  a  holy  mystery 

1  On  the  lack  of  prescribed  conditions  see  Esmein,  op.  cit,,  1, 149  £F. ;  FeeI8EN, 
Geschichte  des  can,  Eherechts,  307-29. 

2  Salis,  Die  Puhlikation  des  trid.  Rechts,  14, 15,  31  £F. ;  Feiedbeeg,  EheschUes- 
sung,  103, 122,  123 ;  Fleinek,  Die  trid.  Ehevorschrift,  3 ;  WateewoetH,  Canons  and 
Decrees,  196  fif.,  ccxxvi  ff. 

3  Esmein,  op,  cit,,  I,  85,  86;  Pollock  and  Maitland,  op.  cit.,  II,  367-72;  Salis, 
op.  cit,,  3,  4. 

*  Ibid.,  44-47,  notes,  where  the  evidence  is  collected  from  the  sources.  Cf.  also 
KiEDLEE,  Bedingte  Eheschliessung,  12,  18  ff. ;  Esmein,  op.  cit.,  I,  78  ff. ;  II,  159  ff.; 
Feiedbeeg,  op.  cit.,  109;  Wateewoeth,  op.  cit.,  pp.  ccxxvff.,  193-96. 


340  Matrimonial  Institutions 

which  Christ  himself  had  given  her,  without  suggesting 
the  human  nature  of  the  matrimonial  contract  and  by 
implication  admitting  the  right  of  the  state  to  exercise  a 
similar  control  ?  But  even  in  this  domain  her  exclusive 
jurisdiction  was  affirmed. 


II.     clandestine  marriages  the  fruit  of  the 
canonical  theory 

The  way  was  thus  cleared  for  clandestine  marriages.  All 
efficient  restraints  upon  hasty  unions  were  rejected;  and 
often  it  became  impossible  for  the  courts  or  even  the  parties 
themselves  to  know  whether  a  man  and  a  woman  were  legally 
husband  and  wife  or  their  children  legitimate.  Seldom  have 
mere  theory  and  subtle  quibbling  had  more  disastrous  con- 
sequences in  practical  life  than  in  the  case  of  the  distinction 
between  sponsalia  de  praesenti  and  de  futuro.  The  differ- 
ence was  not  essential,  but  purely  verbal.'  The  canonist  had 
before  his  mind  the  tense  inflections  of  a  Latin  verb.  He 
insisted  on  a  distinction  which  found  no  place  in  popular 
ideas  and  which  the  usages  of  popular  speech  refused  to  ob- 
serve. In  the  English  as  well  as  the  German  idiom  the  con- 
trast between  the  present  and  the  future  tense  is  not  always 

•  SoHM,  Eheschliessung,  133  ff. ;  idem,  Trauung  und  Verlobung,  1  fF.,  has  demon- 
strated that  in  their  "content"  the  two  kinds  of  sponsalia  are  identical;  the  one  is 
no  more  nor  no  less  a  betrothal  than  the  other,  each  looking  to  a  subsequent  per- 
fected marriage.  The  distinction  is  not  "  eine  Unterscheidung  verschiedener  That- 
bestande,  sondern  nur  eine  verschiedene  rechtliche  Behandlung  desselben  That- 
bestandes." — Eheschliessung,  137.  The  differences  in  tense  were  arbitrarily  made  to 
have  different  legal  consequences. 

On  the  controversy  as  to  the  legal  significance  of  the  two  kinds  of  sponsalia  with 
Sohm  compare  Scheukl,  Kirch.  Ehcschliessungsrecht,  76-107 ;  idem,  "  Zur  Geschichte 
des  kirch.  Eheschliessungsrechts,"  ZKR.,  XV,  65-92,  who  agrees  with  Sohm  that  both 
species  of  sponsalia  are  forms  of  betrothal  (  Verlobungen),  but  insists  that  they  have 
different  legal  consequences.  This  article  is  criticised  by  Bieeling,  "  Kleine  Bei- 
trage,"  ZKR.,  XVI,  288-316 ;  who  is  answered  by  Schecel,  "  Consensus  f acit  nuptias," 
ibid.,  XXII,  269-86.  See  also  Dieckhoff,  Die  kirch.  Trauung,  115  ff. ;  Sehlino, 
Unterscheidung  der  VerlGbnisse,  40  ff.,  60 ff.,  72  ff. ;  Lyndwood,  Provinciale  (Oxford, 
1679),  lib.  quart.,  tit.  1,  270,  271;  Sanchez,  Disputed,  de  sto  mat.  sac,  I,  3-220;  Sel- 
DEN,  Uxor  ebraica  (ed.,  1673),  92  ff.,  or  Opera,  III,  599  ff. 


KisE  OF  Ecclesiastical  Marriage  341 

sharply  defined.'  This  anomaly  is  described  by  Martin 
Luther  in  his  usual  trenchant  style.  "They  have  played  a 
regular  fool's  game,"  he  says,  "with  their  verbis  de  praescnti 
vel  fuiuro.  With  it  they  have  torn  apart  many  marriages 
which  were  valid  according  to  their  own  law,  and  those  which 

were  not  valid  they  have  bound  up Indeed  I  should 

not  myself  know  how  a  churl  ....  would  or  could  betroth 
himself  de  fiituro  in  the  German  tongue;  for  the  way  one 
betroths  himself  means  per  verba  de  praesenti,  and  surely 
a  clown  knows  nothing  of  such  nimble  grammar  as  the  difiPer- 
ence  between  accipio  and  accipiam;  therefore  he  proceeds 
according  to  our  way  of  speech  and  says :  '  I  will  have  thee,' 
*I  will  take  thee,'  'thou  shalt  be  mine.'  Thereupon  'yes'  is 
said  at  once  without  more  ado."* 

That  German  rustics  were  not  the  only  lovers  caught  in 
the  meshes  of  grammatical  forms  appears  from  the  following 
passage  written  toward  the  close  of  the  Tudor  period  by 
Swinburne,  who  nevertheless  defends  the  canonical  distinc- 
tion, whether  the  contract  be  made  in  the  Latin  or  in  the 
vulgar  tongue.'  After  refuting,  as  he  believes,  the  reasoning 
of  those  who  hold  that  the  forms  "I  will  take  thee  to  my 

1 "  Es  kam  hinzu,  das  der  Gegensatz  der  Zeitform  in  der  dentschen  Sprache 
regelm&ssig  Qberhaupt  unerkennbar  war,  denn  zu  dentsch  heisst  es  nicht :  '  ich  nehme 
dich,'  noch:  'ich  werde  dich  nehmen,'  sondern  'ich  will  dich  nehmen.' "  — Sohm, 
Eheschliessung,  135. 

2"  Ja,  ich  wClsste  selbs  nicht  wol,  wie  ein  Knecht  oder  Magd  sollten  oder  knnn- 
ten  in  deutscher  Sprache  per  verba  defuturo  sich  veloben ;  denn  wie  man  sich  verlo- 
bet,  so  laut's  per  verba  de  praesenti,  und  sonderliche  weiss  der  Posel  von  solcher 
behender  Grammatica  nichts,  dass  accipio  und  accipiam  zweierlei  sei ;  er  fuhret  da- 
her  nach  unserer  Sprachen  Art  und  spricht :  'Ich  will  Dich  haben,' '  ich  will  Dich 
nehmen,' '  Du  soUt  mein  sein,'  etc.  Da  ist  die  Stunde  ja  gesagt  ohn  woiter  Aufzug 
oder  Bedenken."  — LuTHEE,  "Von  Ehesachen,"  Werke  (Erlangon  ed.),  XXIII,  102, 
103;  also  in  Bucher  und  Schriften  (Jena,  1561),  V,  240,  241 ;  and  in  Strampff,  318,  319. 
This  whole  interesting  passage,  of  which  a  portion  is  translated  in  the  text,  is  given 
by  SoHM,  Eheschliessung,  139 ;  and  by  Feiedbeeg,  Eheschliessung,  206,  207.  Cf.  also 
Ldthek'3  Tischreden  (Frankfort  ed.,  1571),  c.  36,  p.  356.  Luther's  view  is  accepted  by 
ScHEUEL,  Das  gemeine  deutsch,  Eherecht,  64 ;  and  Balis,  Die  Publikation  des  trid. 
Rechts,  3. 

3  SwiNBUENE,  Of  Spousals,  55-73,  gives  a  most  interesting  discussion  of  the  verbal 
difficulties  arising  in  sponsaita  de  jjraescjiii  vei /wiwro,  comparing  the  legal  writers 
for  and  against  the  distinction. 


342  Matrimonial  Institutions 

wife"  {^'■Ego  volo  te  accipere  in  uxorem'''')  and  "I  do  take 
thee  to  my  wife"  ['■'■Ego  accipio  te  in  uxorem'''')  are  equally 
a  contract  in  the  present  tense,  he  proceeds  to  attack  the 
argument  "drawn  from  the  Simplicity  of  the  Vulgar  sort,  who 
albeit  they  intend  to  tye  such  a  Knot  as  can  never  be  loosed, 
and  make  the  Contract  so  sure  as  it  may  never  be  dissolved ; 
yet  such  is  their  unskilfulness  and  ignorance  herein,  that 
they  cannot  frame  their  words  to  their  minds,  nor  know 
whether  it  be  all  one  to  say  'I  will  take  thee  to  my  wife'  or 
'I  do  take  thee  to  my  wife,'  much  less  do  they  know  the 
difPerence  betwixt  these  words,  'I  will  marry  thee'  and  *I 
will  have  thee  to  my  wife,'  or  betwixt  these  words,  'I  will 
take  thee  to  my  wife'  and  'I  will  hold  thee  for  my  wife,'  or 
betwixt  these  words,  'I  will  espouse  thee'  and  'I  will  intreat 
thee  as  my  wife,'  or  betwixt  these  words,  'I  will  Contract 
Matrimony  with  thee'  and  'I  will  provide  for  thee  as  my 
Wife,'  or  betwixt  these  words,  '  I  will  make  thee  my  wife '  and 
'thou  shalt  be  my  Wife,'  with  an  hundred  such  differences 
wherein  appeareth  no  dissimilitude.  And  therefore,  since  it 
is  the  very  Consent  of  Mind  only  which  maketh  Matrimony, 
we  are  to  regard  not  their  Words,  but  their  Intents,  not  the 
formality  of  the  Phrase,  but  the  drift  of  their  Determination, 
not  the  outward  sound  of  their  Lips,  which  cannot  speak 
more  cunningly,  but  the  inward  Harmony  or  Agreement  of 
their  Hearts,  which  mean  uprightly."  Otherwise,  especially 
in  case  of  people  of  the  "ruder  sort,  whose  Sayings  are  to 
be  expounded  with  all  favour  to  the  furtherance  of  Matri- 
mony," if  "we  shall  curiously  descant  upon  every  word  pro- 
ceeding from  a  simple  Conceit,  we  cannot  but  miss  of  their 
meanings,  and  with  our  fine  and  dainty  Distinctions  (which 
never  came  within  the  compass  of  their  gross  Understand- 
ings) incumber  the  Consciences  of  them  which  be  coupled. 
....  Lest  therefore  any  Man's  Conscience  (through  ignor- 
ance of  Terms)  might  be  intangled  in  the  Snares  of  this  subtle 


Rise  op  Ecclesiastical  Marriage  343 

and  more  captious  Distinction  of  'I  will'  and  'I  do'  with  the 
rest  of  the  DifPerences  more  subtle  and  more  captious,  .... 
are  the  same  to  be  rejected,  and  this  reasonable  and  con- 
scionable  Conclusion  received  ....  where  two  intend  to 
Contract  Spousals  de  praesenii^  there  is  Matrimony  always 
contracted,  although  the  words  import  but  future  Consent 
only." '  Time  has  approved  the  soundness  of  this  plea,  in 
spite  of  the  remonstrance  of  Swinburne  and  the  logic  of  the 
worthy  doctors  whom  he  cites. 

Scholastic  hairsplitting  had  set  a  veritable  trap  for  the 
feet  of  the  unwary.  "Of  all  people  in  the  world  lovers  are 
the  least  likely  to  distinguish  precisely  between  the  present 
and  the  future  tenses.  In  the  Middle  Ages  marriages,  or 
what  looked  like  marriages,  were  exceedingly  insecure.  The 
union  which  had  existed  for  many  years  between  man  and 
woman  might  with  fatal  ease  be  proved  adulterous,  and  there 
would  be  hard  swearing  on  both  sides  about  '  I  will '  and  '  I 
do.'"^  Accordingly  the  ecclesiastical  courts  were  given  a 
dangerous  power* — a  perilous  discretion  in  matrimonial 
causes,  which,  however  wisely  exercised,  was  sure  to  work 
much  hardship  and  injustice.  Since  in  substance  espousals 
de  praesenti  and  de  futuro  were  identical,  differing  only  in 
the  consequences  which  the  law  attached  to  the  tense  form,  it 
was  inevitable  that  decisions  should  be  arbitrary  and  waver- 

i/fttd.,  62 ff.  Cf.  Jeafpeeson,  Brides  and  Bridals,  I,  114 ff.,  124-37  (on  "Pre- 
contracts" before  and  after  the  Reformation). 

2P0LLOCK  AND  Maitland,  Hist,  of  Eng.  Law,  II,  367. 

The  rule  laid  down  by  Anselm  in  1102,  already  mentioned,  really  invites  snch 
"hard  swearing":  "  Promises  of  marriage  made  between  man  and  woman  without 
witnesses"  are  to  be  "null  if  either  party  deny  them."— Johnson's  Canons,  II,  27. 
The  following  is  an  example  of  what  repeatedly  happened  in  the  ecclesiastical 
courts :  "  Omnium  Sanctorum  Honylane. — Thomas  Potynger  comparuit  coram  com- 
issario  [of  London]  in  domo  officii  xxii  die  Augusti  [1481],  et  prestitit  juramentum, 
quod  nunquam  contraxhit  matrimonialiter  cum  Margareta  Hudson  do  eadem,  ibi- 
dem presente,  et  confitente,  quod  nullum  testem  habuit  ad  probandum  contractnm, 
et  ideo  commissarius  remisit  eos  regulae  conscientiarum  suarum." — Hale,  Prece- 
dents and  Procds.  in  Crim.  Causes,  5.    For  another  example  see  ibid.,  6. 

3  They  obtained  a  Freibrief,  or  license,  for  their  practice :  Sohm,  EheschUessung, 
138.    Cf,  Fbiedbeeo,  Eheschliessung,  16  ff.,  on  the  abuses  of  matrimonial  jurisdiction. 


344  Matrimonial  Institutions 

ing;  and,  as  a  matter  of  fact,  practically  the  same  form  of 
contract  was  held  at  one  time  to  constitute  sponsalia  de 
praesenti;  at  another,  a  promise  de  fiduro/  and  the  Liber 
ojfficialis  of  St.  Andrews,  Scotland,  contains  the  record  of  a 
divorce  granted  from  a  second  union  because  the  man  had 
already  contracted  a  previous  marriage  in  these  words:  "I 
promyth  to  yow  Begis  Abirnethy  that  I  sail  mary  yow, 
and  that  I  sail  neuere  haiff  ane  uther  wiff  and  therto  I 
giff  yow  my  fayth."  It  is  a  striking  illustration  of  the  en- 
tanglements resulting  from  the  canonical  theory  that  this 
contract  is  styled  in  the  record  ^^hoth  sponsalia  de  futuro 
and  praesenti.''^  ^  The  worst  of  it  was  that  the  spiritual 
salvation  or  damnation  of  the  man  and  woman,  the  genuine- 
ness of  whose  union  was  in  question,  depended  upon  the 
decision.  The  valid  marriage  was  no  less  a  sacrament, 
though  dissolved  through  ignorance,  error,  or  perjury ;  and 
the  invalid  marriage  was  no  more  a  sacrament,  though  in 
the  same  way  declared  binding.  For  by  a  rule  of  the  spirit- 
ual courts,  in  a  suit  growing  out  of  a  secret  marriage,  the 
plaintiff  who  affirmed  the  validity  of  the  espousals,  if  the 
fact  were  denied  by  the  defendant,  had  to  prove  his  allega- 
tion. If  he  failed  to  do  so —  and  this  might  easily  happen, 
since  often  the  espousals  were  formless  and  absolutely  with- 
out witness' — the  case  was  dismissed,  the  contract  dissolved, 

i"The  promise,  se  ducturum  in  conjngem,  or  one  similar,  is  conceived  to  ba 
consensus  de  futuro  in  c.  5, 15,  17,  22x.  de  sponsal.  (4,  1) ;  but  as  consensus  de  prae- 
senti in  c.  5x.  de  sponsa  duor.  (4,  3)." — Sohm,  Eheschliessung,  135  n.  51. 

2  Ex  et  pro  eo  quia  dictus  David  diu  ante  solemnizationem  dicti  pretensi  matri- 
monii ....  alia  sponsalia  tarn  verba  de  futuro  quam  de  praesenti  cum  Margareta 
Abirnethy,  impressentiarum  superstite,  carnali  copula  subsecuta,  contraxit,"  etc. — 
Feiedbeeg,  Eheschliessung,  58;  Liber  officialis  S,  Andree,  21.  This  book,  19,  33,  66, 
73,  75,  contains,  according  to  Friedberg,  other  records  of  marriages  de  futuro,  some- 
times copula  subsecuta,  dissolved  on  account  of  later  sponsalia  de  praesenti.  Cf. 
also  Sohm,  op.  cit.,  135. 

3  In  the  spiritual  courts  two  good  witnesses  were  required  to  establish  a  fact. 
On  the  "  proof  of  marriage  "  see  Esmein,  Le  mariage  en  droit  canonique,  1, 189  ff. ; 
II,  127  ff. ;  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  382  ff. ;  Law  Review 
(English),  I,  378  ff. 


KiSE  OF  Ecclesiastical  Marriage  345 

and  the  parties  were  free  to  form  new  marriages  elsewhere. 
But  if  the  secret  marriage  were  after  all  really  valid,  and 
therefore  a  sacrament,  though  not  sustained  for  lack  of 
proof,  the  husband  and  wife  were  still  bound  in  their  con- 
sciences; and  if  either  should  form  a  second  union  with 
another  person,  though  it  were  publicly  solemnized  in  face 
of  the  church,  he  would  be  guilty  of  the  sin  of  bigamy.* 
To  the  existence  of  this  cruel  embarrassment  Luther  bears 
witness  in  a  characteristic  passage  of  his  Tisclireden.^  "Now 
the  pope  and  the  jurists  say  that  marriage  may  never  be 
dissolved.  What  happens?  The  wedded  people  fall  out  and 
separate.  So  they  come  to  me  in  the  cloister  or  wherever 
an  oflficial  can  be  found  and  swear  themselves  apart ;  then 
they  marry  again.  Thereafter  they  come  to  me  or  to  some 
confessor  and  say:  Dear  sir,  I  have  now  a  wife  whom  I 
espoused  secretly.  What  am  I  to  do  about  it?  Help  me, 
dear  Doctor,  lest  I  despair.  For  Greta  whom  I  first  married 
is  my  proper  wife.  But  this  Barbara  whom  I  espoused 
later  is  not  my  wife,  and  yet  must  I  not  sleep  with  her? 
The  former  I  dare  not  take,  though  I  should  like  to  have 
her  if  I  could ;  but  I  cannot  for  I  have  another  wife  and  she 
likewise  has  another  husband;  yet  no  one  knows  that  she  is 

1  Salis,  Die  Publikation  des  trid.  Rechts,  6,  7 ;  Pollock  and  Maitland,  op.  cit., 
II,  382,  383;  Esmein,  op.  cit.,  1, 189  £f. ;  II,  127  ff. ;  Friedberg,  Eheschliessung,  102  ff. ; 
SoHM,  Eheschliessung,  187  ff. 

2  Da  spricht  der  Papst  und  die  Juristen,  die  Ehe  dflrfe  nimmermehr  gescheiden 
werden.  Was  geschah?  Die  Eheleute  wurden  darnach  uneins  und  schiedea  sich 
wieder  von  einander.  Also  ging  mirs  im  Kloster  auch ;  oder  wo  man  fur  den  Offi- 
cial kam,  so  schwur  sich  eines  vom  andern,  freieten  wieder.  Darnach  kameu  sie  zu 
mir  oder  einem  Andern  in  die  Beichte  und  sprachen :  Lieber  Herr,  ich  habo  itzt 
eine  Frau,  der  hab  ichs  heimlich  gelobt;  wie  thue  ich  ihm  immermehrl  Helft  mir, 
lieber  Herr  Doctor,  dass ich  nicht  verzweif ele.  Denn  Greta,  mit  der  ich  mich  am  ersten 
verlob  hab,  ist  mein  recht  Eheweib.  Aber  diese  Barbara,  die  mir  darnach  vcrtrawet, 
ist  nicht  mein  Weib  und  muss  doch  bei  ihr  schlaffeni  Jene  darf  ich  nicht  nehmen,  die 
ich  doch  gerne  mOcht  habeu,  da  es  sein  kOnnte ;  aber  ich  kann  nu  nicht,  denn  ich  habe 
eine  Andere,  so  hat  sie  auch  einen  Andern :  doch  weiss  es  Niemand,  dass  sie  meia 
Weib  ist,  denn  allein,  Gott  im  Himmel,  dam  ist  bewust.  O,  ich  worde  verdampt,  ich 
weiss  keinen  Rath."— "Tischreden,"  in  Werke  (Erlang.  ed.),  LXII,  229;  quoted  also 
in  Salis,  7,  8,  who  gives  other  proofs ;  likewise  in  Sohm,  op.  cit.,  189, 190;  Fbiedbeeq, 
op.  cit.,  102;  and  Esmein,  op.  cit.,  II,  129. 


346  Matrimonial  Institutions 

my  wife  except  God  in  heaven.  O,  I  shall  be  damned,  I 
know  not  what  to  do!"'  Luther's  testimony  is  fully  sus- 
tained by  similar  evidence  afforded  by  the  proceedings  and 
decrees  of  the  Council  of  Trent.^ 

The  evil  of  clandestine  marriages  prevailed  generally 
throughout  Christendom,^  The  provincial  church  councils 
as  well  as  the  temporal  powers,  local  and  national,  were  kept 
busy  in  devising  penalties  or  other  restraints  in  the  vain  hope 
of  putting  a  stop  to  it.  Such  was  the  case  in  Holland,  where, 
in  spite  of  the  decrees  of  the  church  and  the  statutes  of  the 
state,  secret  marriages,  without  the  presence  of  witness, 
magistrate,  or  priest,  were  common.*  The  same  is  true  of 
Portugal;^  and  Pope  Alexander  III.  confesses  that  they  were 
frequent  in  Italy,  at  least  in  the  bishopric  of  Salerno,  and 
they  gave  rise  to  vexatious  litigation.®  Suits  were  some- 
times brought  to  enforce  an  alleged  secret  marriage  for 
impure  purposes.  So  severe  were  the  provisions  of  Swiss 
legislation  to  check  this  evil,  toward  the  close  of  the  Middle 

iln  Ltjthee's  "  Von  Ehesachen,"  Werke  (Erlang.,  XXIII,  98),  is  another  inter- 
esting' passage  forcibly  describing  the  danger  of  bigamj' through  the  confusion 
wrought  by  clandestine  marriages.  The  passage  is  also  in  Steampff,  Luther: 
Ueber  die  Ehe,  313  ff. ;  and  it  is  partly  quoted  by  Sohm,  op.  cit,  188, 189. 

2  RicHTEE-ScHULTE,  Canones  et  dec.  cone,  trid.,  216  flF.;  Pallavicino,  1st.  cone, 
Trent.,  IV,  lib.  XXII,  1,  16;  Theinee,  Acta  gen.  cone,  trid.,  II,  314,  335.  Cap.  1  of 
the  decree  of  the  council  for  the  reform  of  marriage  contains  the  following :  "  Cum 
sancta  synodus  animadvertat  prohibitiones  illas  propter  hominum  inoboedientiam 
jam  non  prodesse,  et  gravia  peccata  perpendat,  quae  ex  eisdem  clandestinis  conju- 
giis  ortum  habent,  praesertim  vero  eorum  qui  in  statu  damnationis  permanent,  dum 
priore  uxore  cum  qua  clam  contraxerant,  relicta  cum  alia  palam  contrahunt  et  cum 
ea  in  perpetuo  adulterio  vivunt,  cui  malo  cum  ab  ecclesia,  quae  de  occultis  non  judi- 
cat,  succurri  non  possit,  nisi  eflScacius  aliquod  remedeium  adhibeatur;''  also  in 
Wateewoeth's  Canons  and  Decrees,  196,  197.  Compare  the  passage  on  the  evil 
resulting  from  the  canon  law  of  marriage  in  the  address  with  which  Hieronymus 
Ragazzoni  opens  the  last  or  xxv.  solemn  session  of  the  council :  Theinee,  Acta  gen., 
II,  502.    See  this  and  other  excerpts  in  Salis,  op.  cit.,  1,  9,  passim. 

3 In  general  see  Feiedbeeg,  Index,  at  "Ehe,  heimliche;"  Saxis,  op.  cit.,  1-14; 
Sohm,  op.  cit.,  187 fF.,  132 £E.;  Esmein,  op.  ci«.,  II,  121  ff.;  1, 189ff.;  Geaey,  Marriage 
and  Family  Relations,  434  ff..  Index ;  Pollock  and  M^vitland,  op.  cit.,  II,  367  ff., 
382;  ScHELHAS,  De  clandestinis  sponsalibus  juratis  (Jena,  1716);  Ltndwood,  Pro- 
vinciate (Oxford,  1679),  273  ff. ;  Sanchez,  Disputat.  de  stp  mat.  sac,  I,  221-358. 
Luther's  "Von  Ehesachen,"  Biicher  und  Schriften,  V,  237-57,  is  largely  devoted  to  a 
discussion  of  secret  betrothals. 

*  Feiedbeeg,  op.  cit.,  66-69.  s  ibid,,  75. 

6  Salis,  op.  cii.,  8;  Feiedbeeg,  op,  cit.,  75-77. 


Rise  of  Ecclesiastical  Marriage  347 

Ages,  that  even  the  innocent  were  deterred  from  appealing 
to  the  courts  to  enforce  their  matrimonial  rights.  Before 
bringing  suit  security  was  required;  and  the  unsuccessful 
plaintiff  was  fined  and  compelled  to  pay  damage.'  "Against 
a  Zurich  law  of  this  kind  an  official  of  Konstanz  remon- 
strates, declaring  that  '  without  doubt  there  are  in  the 
bishoprick  of  Konstanz  hundreds  of  persons  who  before  the 
Lord  God  are  married  people,  legally  joined  together,  and 
yet  who  are  so  much  in  dread  of  the  penalty  as  not  to  dare 
to  enforce  their  legal  rights  against  one  another.'  "  ^  At  the 
Council  of  Trent  report  was  made  of  secret  marriages  in 
Africa*  and  the  West  Indies;*  while  in  Germany  they  gave 
trouble  both  to  the  temporal  and  spiritual  law-maker  long 
after  the  Reformation.^  The  uncertainty  and  complexity  of 
matrimonial  law  bore  their  natural  fruit  in  Spain "^  and  in 
France.'  It  was  the  king  of  France  who  through  his  ora- 
tores,  or  representatives,  brought  before  the  Council  of 
Trent  the  proposal  which  prevailed  to  reform  the  abuse  by 
making  the  validity  of  marriage  depend  upon  its  public 
solemnization  f  while  a  measure  of  Alfonso  the  Wise  of  Cas- 
tile, in  1258,  not  only  defines  the  well-known  three  kinds  of 
clandestine  marriages,  but  shows  clearly,  what  Gratian^  had 

1  Salis,  op.  cit.,  8,  9;  ap.  Zeitschrift  fur  schweiz.  Becht,  1878,  XX,  114  3. 

2"Und  ist  ungezwyfelt,  es  sitzen  im  Bisthum  Costanntz  hundert  und  aber 
hundert  parthyen,  die  vor  Gott  dem  Herrn  Eeliit  sin  und  mit  recht  zusammen 
gewyst  wurden,  und  doch  umb  sorg  des  penfals  einander  mit  gepfirlichen  Rechten 
nit  thiiren  fiirnemmen." — Salis,  op.  cit.,  9. 

3  See  the  letter  of  Mutio  Calini  to  Cardinal  Luigi  Cornara,  July  29, 1563,  in  Salis, 
op,  cit.,  13. 

*Theinee,  Acta  gen.,  II,  367, 513;  Pallavicino,  Ist.  cone,  trid..  Vol.  IV,  lib.  xxii, 
4,  24;  Salis,  op.  cit.,  12. 

5FEIEDBERG,  EheschUessung,  79,  260,  261.  &Ibid.,  71-74;  Salis,  op.  cit.,  11, 12. 

7FEIEDBEEG,  op.  cit.,  62  £E.,  499;  Salis,  op.  cit.,  9, 11, 12. 

sTheinee,  op.  cit.,  II,  316;  Salis,  op.  cit.,  9;  Feiedbeeg,  op.  cit.,  110. 

9"Coniugia,  que  (quae)  clam  contrahuntur,  non  negantur  esse  coniugia,  nee 
iubentur  dissolui,  si  utriusque  confessione  probari  poterunt:  uerumtamen  pro- 
hibentur,  quia  mutata  alterius  eorum  uoluntate,  alterius  professioue  fides  iudici 
fieri  non  potest.  Unde  publice,  cum  alterius  uota  in  alteram  partem  se  transtule- 
rint,  pro  priore  coniugio,  quod  iudici  incertum  est,  sentencia  ferri  non  poterit." — 
Gratian,  Decreti  sec.  pars  causa  xxx,  quest,  v,  c.  ix:  Eichtee-Feiedbeeg,  Corpus 
juris  can.,  1, 1107.    The  passage  is  also  quoted  from  different  text  by  Salim,  op.  cit.,  6, 


348  Matrimonial  Institutions 

already  pointed  out,  that  the  permanence  or  dissolution  of 
such  a  marriage  really  depends  upon  the  will  of  the  parties 
themselves,  or  even  one  of  them.  "  Three  kinds  of  marriage 
are  called  'secret;'  the  first  is  one  concluded  privately  and 
without  witnesses,  so  that  it  cannot  be  proved.  The  second 
is  one  formed  before  witnesses,  but  without  the  consent  of 
the  bride's  father,  or  mother,  or  other  relative  in  whose  pro- 
tection she  is,  and  without  payment  of  the  arrha  or  observing 
the  other  forms  (honors)  which  holy  church  demands.  The 
third  is  one  whose  banns  have  not  been  published  in  the 

parish  where  the  parties  live The  reason  why  the 

holy  church  forbids  secret  marriages  is  this:  When  a  differ- 
ence arises  between  the  wedded  pair,  and  the  one  will  no 
longer  live  with  the  other,  the  church  has  no  means  to  pre- 
vent the  separation,  even  when  in  truth  a  marriage  exists; 
because  it  cannot  be  proved.  For  the  church  cannot  pass 
judgment  on  secrets;  but  only  on  the  allegations  of  the 
parties  which  are  proved."* 

Nowhere  perhaps  is  the  history  of  secret  marriages  so 
interesting  as  in  Scotland^  and  mediaeval  England.  Many 
proofs  and  illustrations  from  literature,  early  rituals,  law- 
books, and  judicial  decisions  have  been  collected  by  Fried- 
berg.^     Usually  the  nuptials  were  celebrated  in  presence  of 

who  adds  the  statement  of  the  cardinal  of  Lothringen  at  the  Council  of  Trent: 
"Clandestinum  matrimonium  est  causa  disjunctionis  conjugum;  tales  enim  cum 
nullos  habeant  testes  matrimonii  contracti,  pro  libito  possunt  separari," — Ap. 
Theinee,  op.  cit.,  II,  314. 

1  The  document,  of  which  a  part  is  translated  in  the  text,  will  be  found  in  Feied- 
BEEG,  op.  cit.,  72,  73.  On  the  kinds  of  clandestine  marriage  see  Salis,  op.  cit.,  5,  6; 
BoHN,  Pol.  Cyc,  III,  320;  Esmein,  Le  mariage  en  droit  canonique,  I,  181  S.;  Lynd- 
WOOD,  Provinciate,  276. 

2  For  Scotland  see  Geaey,  Marriage  and  Family  Relations,  534  ff. ;  Fbxedbebg, 
op.  cit.,  57,  58, passim;  Jeapfreson,  Brides  and  Bridals,  II,  259,  260. 

3FEIEDBEEG,  op.  cit.,  36-57,  317,  335,  344,  355.  Secret  marriages  are  censured  by 
Ceanmee,  Misc.  Writings,  82,  159 ;  Hoopee,  Later  Writings,  137, 149 ;  Latimee,  Ser- 
mons, II,  243.  Consent  of  parents  is  urged  by  Sandys,  Sermons,  50,  281,  325,  326,  455; 
Becon,  Catechism,  355,  358,  371,  372;  idem.  Prayers,  199, 532;  Tyndale,  Early  Writings, 
169, 170, 199;  Jeaffreson,  Brides  and  Bridals,  II,  104-14;  1, 113  ff.,  discusses  clandes- 
tine marriages,  mainly  after  the  Beformation. 


Rise  of  Ecclesiastical  Marriage  349 

a  priest  at  the  church  door  according  to  popular  forms,  or, 
in  the  later  period,  according  to  more  elaborate  religious 
rites.  But  by  custom  the  simple  hand-fasting,  with  or  with- 
out giving  to  the  bride  a  penny  or  piece  of  gold,  sufficed; 
and  the  hand-fasting  is  found  also  in  connection  with  the 
ecclesiastical  ceremony.  Even  in  the  case  of  secret  mar- 
riages "it  is  characteristic  that  mention  is  almost  always 
made  of  the  presence  of  a  priest  who  confers  his  blessing." ' 
Miles  Coverdale's  translation  of  Bullinger's  Christen  State 
of  Matrimonye  (ca.  1541)  contains  the  following  instructive 
passage: 

"Yet  in  thys  thynge  also  must  I  warne  everye  reasonable 
&  honest  parson  to  beware,  that  in  contractyng  of  maryage 
they  dyssemble  not,  nor  set  forthe  any  lye.  Every  man  lyke- 
wyse  must  esteme  the  parson  to  whom  he  is  hand-fasted, 
none  otherwyse  than  for  his  owne  spouse,  though  as  yet  it 
be  not  done  in  the  church  nor  in  the  streate.  After  the  hand 
fasting  &  makyng  of  the  contracte,  the  church  goyng  &  wed- 
dyng  shulde  not  be  deffered  to  long,  lest  the  wicked  sowe  hys 
vngracious  sede  in  the  mene  season.  Likewise  the  wedding 
(&  cohabitacio  of  the  parties)  ought  to  be  begoiie  with  god, 
&  with  the  ernest  prayer  of  the  whole  church  or  congregacio 
....  In  to  this  dishe  hath  the  devill  put  his  foote,  &  myn- 
gled  it  with  many  wicked  vses  &  customes.  For  in  some 
places  ther  is  such  a  maner,  wel  worthy  to  be  rebuked  that  at 
the  hand  fastynge  there  is  made  a  great  feast  &  superfluous 
bancket,  &  even  the  same  night  are  the  two  had  fasted  per- 
sones  brought  &  layed  together,  yea  certayne  wekes  afore 
they  go  tot  [sic]  the  church."  ^ 

iFErEDBEEG,  op.  cit.,  39,  40.  This  appears  plainly  from  the  constitution  of 
Stratford,  1343,  against  clandestine  marriages;  as  well  as  from  that  of  Zoucho,  1347: 
Johnson's  Canons,  II,  395-97,  410,  411. 

2  Miles  Coveedale,  The  Christen  State  of  Matrimonye  (1st  ed.,  1541),  xlviii, 
xlviiii. 

This  passage  was  transcribed  for  me  from  a  copy  of  the  first  edition  (1541)  in  tha 
library  of  the  British  Museum  by  Professor  William  H.  Hudson.    To  his  kindness  I 


350  Matrimonial  Institutions 

Eleven  years  earlier  similar  testimony  is  given  in  Richard 
Whitforde's  Werke  for  housholders.  "The  ghostly  en- 
nemy,"  he  says,  "doth  deceyue  many  psones  by  y®  pretence 
&  colour  of  matrymony  in  pryuate  &  secrete  contractes.  For 
many  men  whan  they  can  not  obteyn  theyr  vnclene  desyre  of 
the  woman  wyl  promyse  marry  age,  &  thervpon  make  a  con- 
tracte  promyse,  &  gyue  fayth  &  trouth  eche  vnto  other 
sayenge.  Here  I  take  the  Margery  vnto  my  wyfe,  I  therto 
plyght  the  my  trouth.  And  she  agayne,  vnto  hym  in  lyke 
maner.  And  after  that  done,  they  suppose  they  maye  law- 
fully vse  theyr  vnclene  behauyour,  and  somtyme  the  acte 
and  dede  doth  folow,  vnto  the  great  offence  of  god  &  theyr 
owne  soules.  It  is  a  great  ieopardy  therfore  to  make  ony 
suche  contractes,  specyally  amonge  them  selfe  secretely 
alone,  without  recordes,  whiche  must  be  two  at  the  least."^ 

In  Scudmore's  A  Womaii's  a  Weathercocke  the  priest 
who  is  expected  to  solemnize  the  marriage  of  a  lady  with 
Count  Frederick  says: 

"She  is  contracted,  sir,  nay  married. 
Unto  another  man,  though  it  want  forme: 
And  such  strange  passages  and  mutuall  vowes, 
I  would  make  your  short  haire  start,  through  youre  blacke 
Cap,  should  you  heare  it."  * 

Many  similar  proofs  may  be  found  in  the  plays  and 
ballads  of  the  sixteenth  and  seventeenth  centuries. 

am  also  indebted  for  the  extract  from  Whitforde's  book  taken  from  a  copy  in  the 

possession  of  the  same  library.  In  1899  Sotheran  offered  for  £4  10s.  a  "  probably 
unique"  copy  of  a  24mo  edition  of  Coverdale's  work,  1543.  This  he  regards  as  a  copy 
of  the  second  edition,  the  title  differing  somewhat  from  that  of  the  first  edition. 
An  8vo  edition  appeared  also  in  1543,  with  a  preface  by  Becon.  Feiedbeeg,  op.  cit., 
40,  quotes  the  same  passage  ;  but  the  different  spelling  indicates  that  he  has  not  used 
the  first  edition. 

1  Richard  Whitfoede,  A  Werke  for  housholders  (2d  ed.,  1537),  sign.  E.  iii  and 
following  page.  There  is  no  pagination.  For  the  date  see  Bayne,  in  Diet.  Nat.  Biog., 
LXI,  125-27. 

2FRIEDBEEG,  op.  cit.,  41. 


Rise  of  Ecclesiastical  Marriage  351 

iii.    the  evils  of  the  spiritual  jurisdiction 

The  separation  of  the  temporal  and  spiritual  courts  and 
the  tenacity  with  which  early  custom  and  theory  were  pre- 
served in  the  common  law'  render  the  history  of  matrimonial 
judicature  anomalous  in  England.  The  leading  case  occurs 
in  the  reign  of  Stephen.  "Richard  de  Anesty's  memorable 
law-suit^  was  the  outcome  of  a  divorce  pronounced  in  1143 
under  the  authority  of  a  papal  rescript,  and  one  that  to  all 
appearance  illustrated  what  was  to  be  a  characteristic  doc- 
trine of  the  canon  law:  a  marriage  solemnly  celebrated  in 
church,  a  marriage  of  which  a  child  had  been  born,  was  set 
aside  as  null  in  favour  of  an  earlier  marriage  constituted 
by  a  mere  exchange  of  consenting  words."  ^  By  the  time 
of  Henry  II.  this  doctrine  was  completely  established  in 
England,  as  shown  by  the  famous  decretal  epistle  of  Alexan- 
der III.  to  the  bishop  of  Norwich:  "A  strong  case  is  put. 
On  the  one  hand  stands  the  bare  consent  per  verba  de 
praesenti,  unhallowed  and  unconsum mated,  on  the  other  a 
solemn  and  a  consummated  union.  The  latter  must  yield  to 
the  former."*  Such  remained  the  law  of  England  until  the 
passage  of  the  Hardwicke  act  in  1753.^ 

The  perils  arising  in  the  canonical  theory  of  espousals 
were  greatly  increased  by  the  doctrine  of  impediments  to 
marriage,  particularly  those  growing  out  of  forbidden  degrees 

l/6tU,  47,  48. 

2  Discussed  in  Palgeave,  Commonwealth,  II,  v-xxvii ;  Bigelow,  Placita  Anglo- 
Normannica,  175;  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  1, 137, 138. 

3/6id.,  II,  365. 

For  further  illustration  see  Loeesch,  "  Ein  eherechtliches  Drtheil,"  ZKR.,  XV, 
407-10;  and  Feensdoeff,  "Ein  Urtheilsbuch  des  geist.  Gerichts  zu  Augsburg,"  ihid., 
X,  1-37,  publishing  a  manuscript  containing  decisions  for  the  years  1348-52  which 
afford  abundant  proof  of  the  doctrine  and  practice  regarding  spojisalia  de  praesenti, 

*  Pollock  and  Maitland,  op.  cit.,  II,  369,  where  a  translation'of  the  epistle  is 
given.  Cf.  Bohn,  Pol.  Cyc,  III,  319;  Sohm,  Eheschliessunp,  124  ff.,  who  discusses 
from  the  canons  the  influence  of  Alexander  III.  on  this  doctrine. 

5  This  principle  is  illustrated  in  a  suit  for  jactitation  of  marriage  before  the 
commissary  of  London,  1501:  Hale,  Precedents,  72,  73;  and  in  a  case  of  punishing 
clandestine  marriage  by  prescribing  penance  by  the  same  court  in  1502:  ibid.,  78,  79. 


352  Matrimonial  Institutions 

of  affinity,  consanguinity,  and  spiritual  relationship.*  "Reck- 
less of  mundane  consequences,  the  church  while  she  treated 
marriage  as  a  formless  contract,  multiplied  impediments 
which  made  the  formation  of  a  valid  marriage  a  matter  of 
chance."^  The  stringency  of  the  law  in  this  regard  appears 
to  be  entirely  inconsistent  with  the  theory  that  marriage 
should  be  encouraged.  But  doubtless  the  apparent  con- 
tradiction is  due  largely  to  the  same  ideas  which  shaped 
that  theory.  The  Fathers  dreaded  the  sins  of  the  flesh 
through  which  the  sacramental  nature  of  marriage  might 
be  defiled;^  and  they  may  have  felt  a  reaction  against  the 
freedom  of  the  German  custom  touching  the  marriage  of 
blood  kindred.* 

The  development  of  the  law  of  forbidden  degrees,  through 
the  doctrines  of  the  early  Christian  teachers  and  a  long  series 
of  conciliar  decrees,  cannot  here  be  described.  In  the  thir- 
teenth century  the  various  rules  were  codified  by  the  school- 
men under  fifteen  heads;  "and  their  code  has  been  accepted 
and  acted  upon  by  the  greater  part  of  western  Christendom 

1  The  canonists  distinguished  cognatio  from  afflnitas.  There  are  three  sorts  of 
cognatio:  (\)  consanguinitas ;  (2)  cognatio  legalis,ota,Aox>tion;  (3)  cognatio spiritualis, 
arising  in  a  participation  in  the  same  sacrament:  Esmein,  op.  cit.,  335  ff.,  874 £f.  On 
the  whole  subject  see  Niemeiee,  De  conjugiis  prohibitis,  comprising  ten  separate 
dissertations  with  critical  and  bibliographical  "supplementa,"  but  relating  largely 
to  post-Reformation  doctrine;  Sanchez,  Disput.  de  s*?  mat.  sac,  II,  1-402;  Tan- 
CKED,  Summa  de  mat.  (ed.  Wundeelich),  1611.;  the  monograph  of  Eichboen,  Die 
Ehehinderniss  der  Blutsverwandtschaft  nach  kan.  Rechte  (Breslau,  1872) ;  Schxtlte, 
Lehrbuch,  355-57;  Feiedbeeg,  Lehrbuch,  337,  359;  Sehling,  Die  Wirkungender 
Geschlechtsgemeinschaft  (impotence) ;  Geary,  Marriage  and  Family  Relations,  20fiF. ; 
Pollock  and  Maitland,  Hist,  of  Eng.  Law,  II,  383  £f . ;  Feeisen,  Geschichte  des  can. 
Eherechts,  371  ff. ;  Jeaffeeson,  Brides  and  Bridals,  I,  108  ff . ;  II,  306  ff . ;  Moegan, 
Marriage,  Adultei-y,  and  Divorce,  I,  199  ff.  The  Catholic  doctrine  is  set  forth  at 
great  length  by  Scheichee-Bindee,  Praktisches  Handbuch,  8-354;  and  in  Peeeone 
De  mat.  Christ.,  II,  31  ff. 

2  Pollock  and  Maitland,  op.  cit.,  II,  383  ff. 

3  Esmein,  op.  cit.,  I,  87,  90,  335  ff.,  discusses  the  causes  which  produced  this 
irrational  and  intricate  system. 

*Kemble,  Saxons,  II,  406-8;  Lingaed,  Hist.  Anglo-Saxon  Church  (2d  ed.),  II, 
5  ff .  Gregory  advises  Augustine  to  relax  the  rules  of  the  church  in  England  so  as  to 
allow  marriage  beyond  the  second  degree:  Haddan  and  Sttjbbs,  Councils,  111,20, 
21.    Cf.  also  Esmein,  op.  cit.,  I,  344  ff. ;  Eichboen,  Ehehinderniss,  11  ff. 


Rise  of  Ecclesiastical  Marriage  353 

down  to  the  present  day."'  For  a  time  prohibition  was 
extended  to  the  seventh  degree  of  consanguinity,  counting, 
as  did  the  canonists,  in  the  collateral  line,  from  the  common 
ancestor  and  not  through  the  same  according  to  the  Roman 
method.^  A  distinction,  however,  was  made.  Kinship  in 
the  sixth  or  seventh  degree  was  held  to  be  only  '■Hmpedi- 
mentum  impediens,  a  reason  for  a  refusal  to  solemnize  a 
marriage,  not  impedimentum  dirimens,  a  cause  which  would 
render  a  marriage  null;"  and  this  doctrine  was  "received  in 
England  as  well  as  elsewhere."^  At  the  Lateran  council  of 
1215  Innocent  III.  adopted  the  rule  that  "marriages  within 
the  fourth  degree  of  consanguinity  are  forbidden  and  null."* 
But  the  doctrines  of  the  church  touching  affinity  and  rela- 
tionship did  not  therefore  cease  to  perplex  the  courts,  molest 
the  happiness  of  individuals,  and  threaten  the  tranquillity  of 
nations.^  In  England  the  perennial  "deceased  wife's  sister" 
bill,  the  stubborn  resistance  to  which  has  so  long  attested 

1  Mkyeick,  "  Marriage,"  in  Diet.  Christ.  Ant,  II,  1092-1103.  See  also  his  article 
"  Prohibited  Degrees,"  ibid.,  1725-30;  and  Esmein,  op.  cit.,  I,  205  ff. 

2  Thus,  according  to  the  Roman  law,  brother  and  sister  are  in  the  second  degree  ; 
but  by  the  canon  law  they  are  in  the  first  degree.  Second  cousins  by  the  canonists  are 
regarded  as  in  the  third  degree;  by  the  Romans,  as  in  the  sixth  (if  they  are  equally 
distant  from  the  common  ancestor):  Meyeick,  op.  cit.,  II,  1725;  Pollock  and 
Maitland,  op.  cit.,  II,  383-85;  Esmein,  op.  cit.,  I,  351  ff.;  Freisen,  Geschichte  des 
can.  Eherechts,  371-439.  For  the  eastern  church  see  Zhishman,  Das  Eherecht  der 
orient.  Kirche,  213-373. 

3  Pollock  and  Maitland,  op.  cit.,  II,  385;  Esmein,  op.  cit.,  I,  75  ff.,  203-5. 
*  Pollock  and  Maitland,  op.  cit.,  II,  385. 

5  Much  trouble  grew  out  of  the  theory  of  spiritual  aflinity.  Thus  "  in  1462,  John 
Howthon,  of  Tonbridge,  was  sentenced  by  the  Consistory  Court  of  Rochester  to  be 
whipt  three  times  round  both  market  and  church  for  having  married  Dionysia 
Thomas,  for  whom  his  former  wife  had  been  godmother.  The  like  spiritual  relation 
occasioned  (Jan.  7,  1465)  a  dissolution  of  the  marriage  between  John  Trcvennock 
and  Joan  Peckham;  Letitia,  the  former  wife  of  the  said  John  having  been  god- 
mother to  a  child  of  the  said  Joan."  On  December  29, 1472,  William  Lovelasse,  of 
Kingsdown,  was  cited  to  appear  "on  a  charge  of  having  married  his  spiritual  sister, 
viz.,  a  woman  whom  his  mother  had  held  at  her  confirmation."— Buen,  Parish 
Registers,  3,  4,  notes,  citing  Thoepe,  Customale.  The  case  of  Henry  VIII.  and 
Catherine,  wife  of  his  elder  brother  Arthur,  and  the  anecdote  of  Audowera  and 
Fredegonda,  wife  of  King  Chilperic  of  Neustria  (Thieeey,  Narratives  of  the  Mero- 
vingian Era,  London,  n.  d.,  20),  are  in  point.  On  the  evils  of  the  complex  system 
see  Thwing,  The  Family,  83;  Laio  Review  (English),  I,  353  ff.;  WoOLSEY,  Divorce, 
120  ff . ;  and  especially  Huth,  Marriage  of  Near  Kin,  113  ff. 


354  Matrimonial  Institutions 

the  amazing  tenacity  of  theological  prejudice,  has  not  even 
yet  successfully  run  the  gauntlet  of  the  House  of  Lords/ 

The  relation  of  the  temporal  to  the  spiritual  courts  in  the 
administration  of  English  matrimonial  law  was  anomalous.^ 
Strictly  speaking,  there  was  no  lay  jurisdiction  whatever 
with  regard  to  the  genuineness  of  marriage.  Only  the 
ecclesiastical  judge  could  determine  whether  a  valid  marriage 
existed.'  In  such  a  case  the  jury  could  not  "declare  the 
right."  The  question  was  referred  to  the  spiritual  court  for 
decision.  On  the  other  hand,  the  law  tribunal,  without  aid 
of  the  spiritual  judge,  could  say  whether  or  not  there  was  a 
de  facto  marriage  as  opposed  to  a  marriage  de  jure.  The 
jury  could  determine,  in  a  possessory  action,  whether  there 
had  been  a  public  ceremony  in  face  of  the  church.  This 
was  a  decisive  proof;  for  the  mere  fact  of  living  together  as 
husband  and  wife  was  not  always  conclusive.*  "If  a  man 
and  woman  have  gone  through  the  ceremony  of  marriage  at 
the  church  door,  we  may  say  that  we  have  here  a  de  facto 
marriage,  a  union  which  stands  to  a  valid  marriage  in  some- 
what the  same  relation  as  that  in  which  possession  stands  to 
ownership.  On  the  other  hand,  if  there  has  been  no  cere- 
mony, we  cannot  in  the  thirteenth  century  say  that  there  is 

1  EsMKiN,  op.  cit.,  1, 203-402,  gives  an  elaborate  historical  account  of  matrimonial 
impediments. 

2  The  relation  of  the  two  jurisdictions  is  carefully  examined  by  Feiedbeeg, 
EheschUessung,  47-57,  with  citation  of  the  principal  cases ;  also  in  a  very  clear  and 
interesting  way  by  Pollock  and  Maitland,  op.  cit.,  II,  370  fF.,  to  whom  I  am  par- 
ticularly indebted.    Cf.  Geaet,  Marriage  and  Family  Relations,  1-6. 

3  Glanville,  Tractatus,  lib.  vii,  c.  13 :  Phillips,  II,  402.  Idem,  c.  14 :  Phillips, 
II,  402,  gives  the  form  of  writ  by  which  a  question  of  valid  marriage  is  referred  to 
the  archbishop. 

*See,  however,  Feiedbeeg,  op.  cit.,  51:  "Lag  aber  die  Frage  vor,  haben  die 
Parteien  wie  Mann  und  Frau  zusammen  gelebt,  haben  sie  sich  verlobt,  war  mithin 
fiber  das  Recht  der  Ehe  ['the  right  of  marriage']  keine  Entscheidung  zu  fallen, 
sondern  allein  fiber  den  factischen  Thatbestand,  so  urtheilte  der  weltliche  Eichter." 
But  this  led  to  strange  embarrassments.  Thus  it  was  in  doubt  whether  a  compulsory 
marriage  belonged  to  the  spiritual  or  to  the  temporal  court:  Rolle,  Abridgment 
(1688),  I,  340;  and  "still  greater  was  the  doubt  in  case  of  the  question,  whether  a 
second  marriage  were  invalid  if  the  first  stUl  existed  ":  Feiedbeeg,  op.  cit.,  51  n.  2; 
Year  Book,  49  Ed.  III.,  18. 


Rise  op  Ecclesiastical  Marriage  355 

a  de  facto  marriage;  mere  concubinage,  especially  among 
the  clergy,  is  far  too  common  to  allow  us  to  presume  a  mar- 
riage wherever  there  is  a  long-continued  cohabitation.  But 
a  religious  ceremony  is  a  different  thing;  it  is  definite  and 
public ;  we  can  trust  the  jurors  to  know  all  about  it ;  we  can 
make  it  the  basis  of  our  judgments  whenever  the  validity  of 
the  union  has  not  been  put  in  issue  in  such  a  fashion  that 
the  decision  of  an  ecclesiastical  court  must  be  awaited."^ 

The  practical  application  of  this  doctrine  appears  in  the 
two  cases  of  divorce  and  inheritance.  Here  the  temporal 
courts  tried  indirectly  to  put  a  check  upon  clandestine  mar- 
riages, to  remedy  the  evils  resulting  from  the  scholastic 
dogma  that  mere  consent  secretly  expressed  in  words  of  the 
present  tense  constitutes  a  valid  marriage,  by  making  the 
acquisition  of  certain  property  rights  depend  upon  the  pub- 
licity of  the  espousals.^  The  widow  could  not  receive  her 
dower  unless  it  had  been  publicly  assigned  at  the  nuptials 
before  the  church  door.^  "The  result  is  curious,  for  at  first 
sight  the  lay  tribunal  seems  to  be  rigidly  requiring  a  reli- 
gious ceremony  which  in  the  eyes  of  the  church  is  unessen- 
tial  We  soon  see,  however,  that  what  our  justices 

are  demanding  is,  not  a  religious  rite  nor  'the  presence  of 

an   ordained   clergyman,'    but   publicity Marriages 

contracted  elsewhere  may  be  valid  enough,  but  only  at  the 

1  Pollock  and  Maitland,  op,  cit.,  II,  378.  Cf.  Feiedbeeg,  op,  cit,,  56.  "  The 
canonists  themselves  having  made  marriages  all  too  easy,  and  valid  marriages  all 
too  difficult,  had  been  driven  into  a  doctrine  of  possessory  marriage."  In  a  case 
where  a  valid  or  canonical  marriage  could  not  be  proved  by  the  plaintiff,  he  was 
given  a  possessory  action,  actio  spolii,  and  "  in  this  the  defendant  will  not  be  allowed 
to  set  up  pleas  which  dispute,  not  the  existence  of  a  de  facto  marriage,  but  its 
validity,"  while  the  "plaintiff  must  prove  a  marriage  celebrated  in  face  of  the 
church  " :  Pollock  and  Maitland,  op,  cit.,  II,  379.    Cf,  Esmein,  op,  cit,,  II,  15  ff. 

2  On  the  divergence  of  the  temporal  and  ecclesiastical  laws  as  to  legitimacy  see 
Glanville,  Tractatus,  lib.  vii,  c.  15:  Phillips,  II,  403.  Compare  Swinbuene,  Of 
Spausals,  15,  233  ff. 

5  Feiedbeeg,  Eheschliessung,  50;  Pollock  and  Maitland,  op,  cit,,  II,  372; 
Beacton,  De  leg,  et  consuetud.,  foil.  302-4 ;  idem.  Note  Book,  placita  891, 1669, 1718, 
1875,  Maitland'3  ed.,  11,  688 ;  III,  517,  559, 659. 


356  Matrimonial  Institutions 

church  door  can  a  bride  be  endowed.  There  is  a  special 
reason  for  this  requirement.  The  common-law  contrast  to 
the  church-door  marriage  is  the  death-bed  marriage.'  At 
the  instance  of  the  priest  and  with  the  fear  of  death  before 
him,  the  sinner  'makes  an  honest  woman'  of  his  mistress. 
This  may  do  well  enough  for  the  church,  and  may,  one 
hopes,  profit  his  soul  in  another  world,  but  it  must  give  no 
rights  in  English  soil."^  So  also  with  regard  to  inheritance, 
in  certain  cases,^  the  lay  court  made  the  rights  of  children 
depend  upon  public  solemnization  of  the  nuptials,  thus 
adopting  the  canonical  theory  of  "putative  marriages."* 
Although  there  may  be  no  valid  marriage  on  account  of  the 
existence  of  certain  impediments,  such  as  too  near  kinship, 
the  children  are  nevertheless  legitimate  if  the  nuptials  were 
publicly  celebrated  at  the  church  door,  and  if  at  least  one 
of  the  parents,  at  the  time  the  children  were  begotten,  was 
"ignorant  of  the  fact  which  constituted  the  impediment." 
They  are  entitled  to  inheritance,  though  the  parents  are  not 
really  husband  and  wife.  On  this  point  in  the  thirteenth 
century   church   and  state  were   at  one ;  ^  but  later  a  less 

1  Ap.  Beacton,  De  leg.  et  consuetud.,  fol.  92 ;  Note  Book,  pi.  891, 1669,  1718,  1875, 
Maitland'8  ed.,  II,  688;  III,  517,  559,  659. 

2  Pollock  and  Maitland,  op.  cit,  U,  372, 373. 

3GLANVILLE,  op.  cit.,  lib.  vii,  c.  15:  Phillips,  II,  403.  For  an  interesting  case, 
showing  that  the  spiritual  court  could  determine  only  the  question  of  the  validity 
of  marriage,  and  not  that  of  inheritance,  which  belonged  to  the  king's  courts,  see 
Corpus  juris  can.,  c.  17,  x,  1,  29;  c.  4,  x,  4, 17;  c.  7;  quoted  by  Feiedbeeg,  op.  cit., 
50  n.  2. 

*  On  "putative"  marriages  see  Esmein,  op.  ci^.,  II,  33-37;  Feeisen,  GescAicfe^e 
des  can.  Eherechts,  857-62;  especially  Pollock  and  Maitland,  op.  cit.,  II,  373-77. 

5  "  To  this  agreement  between  church  and  state  there  was  the  one  well-known 
exception:  our  temporal  courts  would  not  allow  to  marriage  any  retroactive  power; 
the  bastard  remained  incapable  of  inheriting  land  even  though  his  parents  had 
become  husband  and  wife  and  thereby  made  him  capable  of  receiving  holy  orders 

and,  in  all  probability,  of  taking  a  share  in  the  movable  goods  of  his  parents 

But  about  all  other  matters  the  church  could  have,  and  apparently  had,  her  way 

'You  are  a  bastard,  for  your  father  was  a  deacon':  that  was  a  good  plea  in  the 
king's  court,  and  the  king's  court  did  nothing  to  narrow  the  mischievous  latitude 
of  the  prohibited  degrees."— Pollock  and  Maitland,  op.  cit.,  II,  375,  376.  On 
legitimation  through  subsequent  marriage  by  the  canon  law  see  Esmein,  op.  cit., 
II,  37  S. ;  SwiNBUENE,  Of  Spousals,  233  ff . 


Rise  of  Ecclesiastical  Marriage  357 

liberal  doctrine  was  adopted  by  the  secular  tribunals.  "The 
ultimate  theory  of  the  English  lawyers  took  no  heed  of  good 
or  bad  faith,  and  made  the  legitimacy  of  the  children  de- 
pend on  the  fact  that  their  parents  while  living  were  never 
divorced." ' 

The  refusal  of  the  church  to  prescribe  a  proper  age  con- 
dition for  those  entering  matrimony  led,  as  might  be  expected, 
to  child  marriages ;  and  in  this  case  the  rules  of  the  Eng- 
lish common  law  only  tended  to  magnify  the  evil.  By  the 
canonists  the  age  of  consent  to  marriage  was  fixed  at  seven 
years.^  Thereafter  a  marriage  formed  without  consent  of 
parent  or  guardian,  and  even  in  opposition  to  it,  was  held 
to  be  legal;  but  it  was  "voidable  so  long  as  either  of  the 
parties  to  it  was  below  the  age  at  which  it  could  be  consum- 
mated. A  presumption  fixed  this  age  at  fourteen  years  for 
boys  and  twelve  years  for  girls.  In  case  only  one  of  the 
parties  was  below  that  age,  the  marriage  could  be  avoided 
by  that  party  but  was  binding  on  the  other.  So  far  as  we 
can  see,  this  doctrine  was  accepted  by  our  temporal  courts."  * 

1  Pollock  and  Maitland,  op.  cit.,  II,  375  n,  3;  ap.  Pike,  Tear  Book,  11-12 
Ed.  III.,  pp.  xx-xxii. 

2  For  the  growth  of  the  doctrines  of  the  canonists  as  to  the  age  of  consent  and 
the  consequences  of  espousals  before  puberty  see  Feeisen,  Geschichte  des  can. 
Eherechts,  323  ff. ;  Esmein,  op.  cit.,  II,  149  ff.,  with  whom  Pollock  and  Maitland, 
op.  cit.,  II,  387  ff.,  appear  to  agree.  Read  also  Jeaffeeson,  Brides  and  Bridals,  I, 
70  ff.,  276  ff.,  who  gives  interesting  illustrations  of  infantile  betrothals  and  mar- 
riages ;  the  learned  monograph  of  Hoffmann,  De  aetate  juvenili,  22  ff . ;  Lyndwood, 
Provinciale  (ed.  1505),  liber  quartus,  fol.  cxcvi;  Tanceed,  Summa  de  mai.,  tit.  4, 
pp.  4,  5. 

The  constitution  De  desponsatione  impuberum  of  the  primate  Edmund  de 
Abingdon  (1233-40)  runs  thus :  "  Ubi  non  est  consensus  utriusque  non  est  conjugium. 
Igitur  qui  pueris  dant  puellas  in  cunabulis,  nihil  faciunt,  nisi  uterque  puerorum, 
postquam  venerit  ad  tempus  discretionis,  consentiat.  Hujus  ergo  Decreti  auctori- 
tate  inhibemus,  ne  de  caetero  aliqui,  quorum  uterque  vel  alter  ad  aetatom  legibus 
constitutam  et  canonibus  determinatam  non  pervenerit,  conjungantur;  nisi  urgente 
necessitate  pro  bono  pacis  talis  conjunctio  toleretur."— Lyndwood,  Provinciale; 
quoted  by  Jeaffeeson,  op  cit.,  I,  74. 

3  Pollock  and  Maitland,  op.  cit.,  II,  387,  388,  who  cite  as  proof  the  case  of 
Thomas  of  Bayeux  and  Elena  de  Morville.  The  king's  court  decided  that  Elena 
should  remain  in  ward  to  the  king  until  the  age  of  puberty,  that  "  she  may  then  con- 
sent or  dissent." 


358  Matrimonial  Institutions 

By  the  teaching  of  the  common  lawyers  a  widow  of  nine 
years  of  age  at  her  husband's  death  could  claim  dower, 
though  the  marriage  would  have  been  voidable  by  her  at 
the  age  of  puberty.'  The  English  temporal  courts  appear 
to  have  disregarded  the  canonical  rule  that  a  marriage  is  abso- 
lutely void  when  formed  below  the  age  of  seven.  "Coke 
tells  us  that  the  nine  years  old  widow  shall  have  her  dower 
'of  what  age  soever  her  husband  be,  albeit  he  were  but  four 
years  old,'  and  certain  it  is  that  the  betrothal  of  babies  was 
not  consistently  treated  as  a  nullity.  In  Henry  III.'s  day 
marriage  between  a  boy  of  four  or  five  years  and  a  girl  who 
was  no  older  seems  capable  of  ratification,  and  as  a  matter 
of  fact  parents  and  guardians  often  betrothed,  or  attempted 
to  betroth,  children  who  were  less  than  seven  years  old. 
Even  the  church  could  say  no  more  than  that  babies  in  the 
cradle  were  not  to  be  given  in  marriage,  except  under  the 
pressure  of  some  urgent  need."  ^  For  such  infant  marriages, 
however,  there  were  two  practical  motives  during  the  Middle 
Ages.  In  England,  just  as  in  India  and  often  among  lower 
races,'  the  betrothal  or  espousal  of  very  young  children  was 
a  means  of  peaceful  treaty  or  alliance;  and  the  "rigour"  of 
the  feudal  law  was  also  in  this  way  avoided.*  "As  deaths 
were  early  in  those  days,  and  wardship  frequent,  a  father 
sought  by  early  marriage  of  his  son  or  daughter  to  dispose 

1  Pollock  and  Maitland,  op.  cit.,  II,  388 :  ap.  Littleton,  sec.  36 ;  Coke  npon 
Lit.,  33a. 

2  Pollock  and  Maitland,  op.  cit.,  II,  388,  389,  and  the  sources  there  cited. 

3  See  above,  chap.  iv. 

*  "A  treaty  of  peace  involved  an  attempt  to  bind  the  will  of  a  very  small  child, 
and  such  treaties  were  made  not  only  among  princes,  but  among  men  of  humbler 
degree,  who  thus  patched  up  their  quarrels  or  compromised  their  law-suits.  The 
rigour  of  our  feudal  law  afforded  another  reason  for  such  transactions;  a  father 
took  the  earliest  opportunity  of  marrying  his  child  in  order  that  the  right  of  mar- 
riage might  not  fall  to  the  lord."— Pollock  and  Maitland,  op.  cit.,  II,  389.  See 
the  case  of  Grace,  supposititious  child  of  Thomas  of  Saleby,  married  at  four  years  of 
age  to  Adam  Neville,  and  after  his  death  sold  in  marriage  twice  by  King  John :  ibid., 
389,  390:  ap.  Magna  vita  S.  Hugonis,  170-77;  and  in  general  on  early  marriages, 
especially  as  a  means  of  alliance,  compare  Esmein,  op,  cit,,  1, 151  ff. 


Rise  of  Ecclesiastical  Marriage  359 

of  their  hands  in  his  lifetime,  instead  of  leaving  them  to 
be  dealt  out  to  hungry  courtiers  who  only  sought  to  make 
as  large  a  profit  as  they  could  from  the  marriage  of  the 
wards  they  had  bought  for  that  purpose;"'  and  the  lord's 
right  of  marriage  might  in  like  manner  be  defeated  by  con- 
ferring knighthood  upon  a  son  in  tender  years.^  Even  as 
late  as  the  age  of  the  Tudors  "much  immorality  resulted 
from  the  child  marriages  which  were  common  in  fashionable 
life."' 

IV.       PUBLICITY    SOUGHT    THROUGH    BANNS    AND    REGISTRATION 

Without  doubt  the  wrong  and  confusion  arising  in  the 
ecclesiastical  theory  and  definition  of  marriage  were  mani- 
fold, and  they  were  patent  to  every  observer.  At  the  Coun- 
cil of  Trent  it  was  asserted  that  some  action  to  put  a  check 
upon  clandestine  marriages  was  demanded  by  all  the  tem- 
poral powers;*  and  the  provincial  church  councils,  aided  by 
state  legislation,  had  done  what  they  could  by  imposing 
penalties  to  remedy  the  abuse.^  Nevertheless,  strange  as 
it  may  seem  to  one  not  acquainted  with  the  devious  logic 
of  scholastic  theology,  many  members  of  the  Council  of 
Trent,  on  dogmatic  grounds,  were  stubbornly  opposed  to 
the  only  reform  which  experience  showed  could  be  effective. 
They  affirmed  that  severer  discipline  would  suffice.     They 

1  Denton,  England  in  the  Fifteenth  Century,  161.  For  an  illustration  of  the 
lord's  marriage  rights  see  the  case  of  1220  (H.  III.)  in  Select  Pleas  of  the  Croivn  (ed. 
Maitland),  1, 135-38. 

2  "As  knighthood  prevented  wardship,  a  father  sometimes  endowed  his  son  with 
land  to  qualify  him  for  knighthood  at  an  early  age,  so  as  to  bar  the  claims  of  the 
mesne  lord  or  of  the  crown  to  wardship.  An  instance  occurs  of  knighthood  at  the 
age  of  seven  years  avowedly  procured  for  this  reason." — Denton,  Eng.  in  Fifteenth 
Century,  261  n.  1 :  ap.  Smith,  Lives  of  the  Berkeleys,  140. 

3TEA1LL,,  Social  England,  III,  578. 

i Thbinee,  Acta  gen.,  II,  334,  347, 351,  352,  391,  395 :  Salis,  Pub.  des  trid.  Rechts,  10 
n.  16.    Cf.  Waterwoeth,  Canons,  ccxxiii. 

5 So,  for  instance,  in  France:  Feiedbeeg,  Eheschliessung,  64  n.  5;  and  in  Spain, 
ibid.,  74. 


360  Matrimonial  Institutions 

apologized  for  clandestine  marriages  on  the  pretext  that 
they  are  sometimes  useful,  even  necessary;  or  they  denied 
that  to  declare  them  null  would  prove  an  efficient  remedy.' 
Hence  we  are  better  able  to  appreciate  at  its  true  value 
the  significance  for  the  Catholic  world  of  the  victory  gained 
by  the  common-sense  of  the  majority.  It  was  a  victory  in 
favor  of  that  publicity  which  the  state  demanded.  Indeed, 
the  church  had  already  done  something,  in  spite  of  dogma, 
to  change  marriage  from  a  private  to  a  public  transaction. 
Her  collision  with  the  state,  her  anomalous  position  with 
respect  to  social  order,  was  involuntary.  She  was  caught, 
as  it  were,  in  the  meshes  of  her  own  philosophy.  Yet  in  the 
interest  of  morality  she  strove  to  secure  publicity.  The 
priest  at  the  nuptials,  declares  Sohm,  "  appears  first  of  all 
as  a  public  person."^  In  particular  the  church  tried  to 
gain  publicity  for  marriage  by  the  institution  of  banns. 
The  custom  of  publishing  banns  seems  first  to  have  made 
its  appearance  in  France,  probably  as  early  as  the  fifth  cen- 
tury.^ It  is  enforced  by  the  capitulary  of  802,  which  gains 
its  real  significance  from  this  fact,  and  not  from  the  mention 
of  the  priestly  benediction.*  From  France  it  gradually  made 
its  way  into  other  countries  of  Europe.  Thus  in  the  year 
1200,  as  already  noted,  banns  were  enforced  by  Archbishop 
Walter ;  and  they  were  first  made  a  general  requirement  by 
Innocent  III.  at  the  fourth  Lateran  council  in  1215.*  Later 
the  English  archbishops  found  it  necessary  from  time  to 

iSalis,  Pub.  des  trid.  Rechts,  11, 12,  collates  the  evidence  for  the  various  opinions 
from  Theinee,  Acta  gen.,  II.    Cf.  Fbiedbeeg,  op.  cit.,  108  £E. 

2  Sohm,  Eheschliessung,  175. 

3  Ibid.,  181. 

*Capit.  802,  c.  35:  Walter,  Corpus  juris  germ.,  II,  167:  "  conjnnctiones  faeera 
non  praesumant,  antequam  episcopi  presbyteri  cum  senioribus  populi  consanguini- 
tatem  conjungentium  diligenter  exquirant,  at  tunc  cum  benedictione  jungantur." 
Cf.  Sohm's  interpretation,  op.  cit.,  181,  vs.  that  of  Feiedbeeg,  Eheschliessung,  59. 

5 See  p.  314,  above;  and  cf.  Pollock  and  Maitland,  op.  cii.,  II,  368;  Feied- 
beeg, op.  cit.,  10,  653,  654,  for  the  present  practice  as  to  banns  in  various  coun- 
tries. 


Rise  of  Ecclesiastical  Marriage  361 

time  to  impose  more  stringent  penalties  for  neglect  of  the 
proper  publication  of  banns;*  and  they  were  enforced,  with- 
out making  the  publication  essential  to  a  valid  marriage,  by 
the  Council  of  Trent.  From  the  twelfth  century  onward 
the  marriage  rituals  contain  directions  for  the  asking  and 
publication  of  banns  ;^  while  the  punishment  of  persons 
guilty  of  violating  the  canons  in  this  regard  gave  much 
employment  to  the  spiritual  courts  during  the  Middle  Ages.' 

The  institution  of  banns  has  a  special  historical  interest 
as  being  in  some  sense  the  mediaeval  substitute  for  the  mod- 
ern registration  and  official  license  to  wed.  The  practice 
was  to  announce  the  marriage,  usually  on  three  successive 
Sundays  preceding  the  nuptials,  that  any  objection  on  the 
ground  of  relationship  or  other  disability  might  be  brought 
forward.  But  the  decrees  of  the  church  were  not  carefully 
enforced.  Dispensation  from  the  obligation  to  publish 
banns  was  the  right  of  the  bishop,  but  his  license  was 
usually  granted  only  in  favor  of  the  nobility  and  higher 
classes;  and  the  right  constituted  an  important  source  of 
revenue.* 

The  year  1538  marks  an  important  epoch  in  the  admin- 
istration of  English  matrimonial  law.  It  was  then,  accord- 
ing to  the  researches  of  Burn,  that  parish  registers  of  births, 
deaths,  and  marriages  were  first  introduced ;  although  before 
this  time  it  had  been  customary  in  some  places  to  inscribe 

1  Johnson's  Canons,  II,  91,  340,  352,  395,  410. 

2  See  the  rituals  of  York,  Sarnm,  Hereford,  and  others,  in  Snrtees  Society  Publi- 
cations, LXIII,  26  ff.,  Appendix,  17  S.,  115  ff.,  155  £f. ;  and  the  Salisbury  ritual  in 
Maskell's  Monumenta,  I,  50  S. 

3  For  many  cases  see  Hale's  Precedents,  6,  33,  38,  39,  54,  56,  65,  82,  83,  85,  92, 166, 
181, 182,  199,  255. 

^Friedbeeg,  Eheschliessung,  10,124;  Esmein,  Le  mariage  en  droit  canonique, 
II,  170  S.,  who  shows  that  the  rules  relating  to  banns  were  too  vague  to  be  effective. 
On  the  requirement  of  banns  see  Ceanmee,  Misc.  Writings,  159 ;  Geindal,  Remains, 
126;  HooPEE,  Later  Writings,  126,  138,  149;  Eidlet,  Works,  531;  Sandys,  Sermons, 
434.  Cf.  on  the  history  of  the  institution  Jeaffeeson,  Brides  and  Bridals,  I,  99-107, 
130  ff.    Compare  Boen,  De  bannis  nuptialibus  (Leipzig,  1716),  sees.  1  ff. 


362  Matrimonial  Institutions 

such  records  in  the  missals  and  psalters  of  the  church.*  The 
first  article  of  the  injunctions  issued  by  Thomas  Cromwell, 
vice- regent  under  Henry  VIII.,  provided:  '■'■Item,  That  you 
and  every  parson,  vicar,  or  curate  within  this  Diocese,  for 
every  Church  keep  one  Book  or  Register,  wherein  he  shall 
write  the  day  and  year  of  every  Wedding,  Christening,  and 
Burial,  made  within  your  parish  for  your  time,  and  so  every 
man  succeeding  you  likewise,  and  also  there  insert  every 
person's  name,  that  shall  be  so  wedded,  christened,  and 
buried.  And  for  the  safe  keeping  of  the  same  Book  the 
parish  shall  be  bound  to  provide  of  their  common  charges 
one  sure  coffer,  with  two  locks  and  keys,  whereof  the  one  to 
remain  with  you,  and  the  other  with  the  Wardens  of  every 
parish  wherein  the  said  Book  shall  be  laid  up,  which  Book 
ye  shall  every  Sunday  take  forth,  and  in  the  presence  of  the 
said  Wardens  or  one  of  them,  write  and  record  in  the  same, 
all  the  Weddings,  Christenings,  and  Burials  made  the  whole 
week  afore,  and  that  done,  to  lay  up  the  Book  in  the  said 
coffer  as  afore ;  and  for  every  time  that  the  same  shall  be 
omitted,  the  party  that  shall  be  in  the  fault  thereof,  shall  for- 

1  BuEN,  Hist,  of  Parish  Registers,  1-16.  Compare  Watees,  Parish  Registers,  5. 
Mention  is  made  of  registers  in  France  as  early  as  1308;  and  by  an  order  of  Cardinal 
Ximenes,  1497,  they  were  to  be  kept  in  every  parish  of  the  diocese  of  Toledo  "  in  order 
to  remedy  the  disorders  occasioned  by  the  frequency  of  divorces  in  Spain,  on  th« 
ground  of  spiritual  aflBnity."  —  Bden,  3;  Maesoliee,  Hisioire  du  ministlre  du  Car- 
dinal Ximenes,  torn.  1,  liv.  2,  263;  Watees,  Parish  Registers,  i.  Cf.  PALGEAVE,in 
Quart.  Rev.,  LXXIII,  561,  who  thus  goes  too  far  in  saying  that  "  parish  registers  wer« 
never  kept  in  any  part  of  the  world  until  the  sixteenth  century.'''' 

There  is  some  evidence, held  to  be  inconclusive  by  Buen,  op,  cit.,  5-15,  that  an  order 
for  the  use  of  registers  may  have  been  made  earlier  than  1538.  The  fact  that  at  least 
eight  registers  begin  before  that  date  points  to  instructions  given  at  the  time  of  the 
suppression  of  the  smaller  monasteries:  Watees,  op.  cit.,  6.  At  the  time  of  the  in- 
surrection in  Yorkshire,  1536,  in  order  to  draw  the  common  people,  it  was  given  out 
"that  the  king  designed  to  get  all  the  gold  of  England  into  his  hands,  under  colour 
of  recoining  it ;  that  he  would  seize  all  unmarked  cattle,  and  all  the  ornaments  of 
parish  churches,  and  they  should  be  forced  to  pay  for  christenings,  marriages,  and 
burials  (orders  having  been  given  for  keeping  Registers  thereof),  and  for  licenses  to 
eat  white  bread."  —  Caete,  His^.  of  England.  See  also  the  rare  tract  by  Holmes 
(1537),  and  the  letter  of  Sir  Piers  Edgcumb  to  Cromwell  (April  20,  1539),  both  quoted 
by  Buen,  op.  cit.,  8,  9.  For  the  date  see  Watees,  op.  cit.,  7 ;  and  compare  Bubm's 
Fleet  Marriages,  3. 


KiSE  OF  Ecclesiastical  Marriage  303 

feit  to  the  said  Church  iij^.  iiij'*.  to  be  employed  on  the  repa- 
ration of  the  said  Church."* 

Thus  in  this,  the  most  ancient  English  registration  act, 
the  parson  or  incumbent  appears  as  the  original  registrar ; 
and  that  the  importance  of  keeping  such  record  was  keenly 
appreciated  is  shown  by  the  anxious,  almost  painful,  minute- 
ness with  which  his  duties  are  defined.  The  order  of  Henry 
VIII.  was  enforced  or  supplemented  under  Edward  VI., 
Elizabeth,  William  III.,  and  other  monarchs;  but,  save 
during  the  Commonwealth,  no  material  change  was  made  in 
the  mode  of  registration  until  in  1836  the  present  system 
was  introduced.^ 

1  BuEN,  Parish  Registers,  17, 18.  Cf.  also  Feiedbeeg,  Eheschliessung,  319, 320. 
The  same  provision,  with  slight  alteration,  is  contained  in  the  injunction  of  1547, 
Edward  VI,  It  is  quoted  by  TouLMiN  Smith,  The  Parish,  187, 188;  Bohn,  Pol.  Cyc, 
IV,  625;  BuEN,  op.  cit.,  18, 19. 

2  For  a  review  of  the  various  proposals,  acts,  and  "  visitations  "  to  enforce  them 
see  Burn,  op.  cit.,  18-39 ;  Feiedbeeg,  op,  cit.,  320-22 ;  Toulmin  Smith,  op.  cit.,  188, 189; 
Bohn,  op.  cit.,  IV,  625,  626. 


CHAPTER   IX 
THE  PROTESTANT  CONCEPTION  OF  MARRIAGE 

[Bibliographical  Note  IX. —  The  ideas  of  the  German  Reforma- 
tion, and  therefore  ultimately  of  Protestantism,  relative  to  the  form 
and  the  nature  of  marriage  were  molded  by  the  thought  of  Martin 
Luther.  Among  his  numerous  writings  on  the  subject  most  important 
are  the  "  Vom  heiligen  Ehestandt  und  Oeconomia  oder  Haushaltung," 
being  the  thirty-sixth  chapter  of  the  Tischreden  (folio,  Frankfort,  1571); 
and  the  following  articles  in  his  Biicher  und  Schriften  (folio,  Jena, 
1555-80):  "Sermon  vom  ehelichen  Stande"  (1519,  in  Vol.  I);  "Predigten 
liber  das  erste  Buch  Mose"  (1527,  in  Vol.  IV);  and  especially  the  "Von 
Ehesachen"  (1530,  in  Vol.  V).  The  principal  passages  from  all  of 
Luther's  wi;itings  on  the  subject  of  n^atrimony  and  divorce,  classified 
in  seven  groups,  with  critical  and  historical  notes  and  marginal  explana- 
tion of  archaic  words,  are  conveniently  given  in  von  Strampff's  Dr. 
Martin  Luther:  Ueber  die  Ehe  (Berlin,  1857),  This  is  an  important 
Quellenbuch  for  the  student.  A  very  useful  book  also,  containing 
twelve  of  his  most  important  papers,  is  the  second  volume  of  the 
Kleinere  Schriften  Dr.  Martin  Luthers,  entitled  "Von  Ehe-  und 
Klostersachen "  (Bielefeld  and  Leipzig,  1877).  Older  works  which 
afford  some  assistance  are  Niess's  Ehestands-Buch  (Eisleben  and  Leip- 
zig, 1858),  comprising,  with  other  matter,  some  of  the  utterances  of 
Luther ;  and  Frobose's  Dr.  Martin  Luther's  ernste,  kraftige  Worte 
uber  Ehe  und  eheliche  Verhdltnisse  (Hanover,  1825). 

The  first  philosophical  treatise  on  marriage,  anticipating  in  various 
ways  the  modern  conception,  is  Erasmus's  Christian!  matrimonii  insti- 
tutio  (Basel,  1526).  The  dedicatory  epistle,  dated  July,  1526,  is  addressed 
to  Queen  Catherine  of  England.  The  edition  cited  in  the  text  bears  the 
general  title  De  m,atrimonio  christiano  (Lugd.  Bat.,  1650);  and  to  it  is 
appended  Vivus's  Conjugii  origine  et  utilitate  discursus.  Erasmus's 
treatise  may  also  be  found  in  Vol.  V  of  his  Opera  omnia  (Lugd.  Bat., 
1704).  The  work  was  prohibited  mainly  because  of  its  critical  tone 
regarding  the  excessive  ardor  of  the  primitive  Christians  for  celibacy 
and  perpetual  virginity.  Of  first-rate  importance  for  obtaining  a  general 
view  of  the  doctrines  of  the  German  Reformation  is  Sarcerius,  Vom 
heiligen  Ehestande  (1553);  or  the  same  work  enlarged  under  title  Corpus 
juris  matrimonialis  (Frankfort,  1569).  It  has  been  found  convenient  to 
relegate  the  description  of  many  writings  available  as  sources  for  this 
chapter  to  Bibliographical  Note  XI.    See  particularly  the  works  of 

364 


Protestant  Conception  of  Marriage       365 

Brenz,  Kling,  Beust,  Schneidewin,  Melanchthon,  Zvvingli,  Bullinger, 
Bucer,  Monner,  Bidembach,  Mentzer,  Brouwer,  and  Forster,  there 
referred  to.  Besides  Melanchthon's  "De  conjugio"  (1551),  in  Opera,  I 
(Erlangen,  1828),  see  also  his  "De  arbore  consanguinitatis  et  affinitatis" 
(1541),  in  Sarcerius,  Vom  heiligen  Ehestande,  Ivs.  xii-xxvii ;  or  the 
"Corpus  juris  matrimonialis,"  Ivs.  xi-xxvii,  where  may  also  be  found 
much  additional  matter  from  Luther,  Kling,  and  others  relating  to  for- 
bidden degrees.  In  this  connection  may  also  be  consulted  Niemeier, 
De  conjugiis  prohibitis  dissertationes  (Helmstadt,  1705),  comprising  ten 
distinct  essays,  with  a  critical  and  bibliographical  supplement,  produced 
during  the  years  1699-1705. 

The  most  important  collection  of  church  regulations  regarding 
marriage  is  Richter's  Die  evangelische  Kirchordnungen  des  sechs- 
zehnten  Jahrhunderts  (Weimar,  1846).  These  have  been  partly  analyzed 
by  Meier,  Jus,  quod  de  forma  matrimonii  ineundi  valet  (Berlin,  1856); 
and  thoroughly  by  Goeschen,  Doctrina  de  matrimonio  (Halle,  1848). 
The  rejection  of  priestly  celibacy  by  the  Reformers  has  called  forth 
numerous  writings,  among  which  the  earliest  are  Luther,  Bedenken 
und  Unterricht  von  den  Klostern  und  alien  geistlichen  Gelilbden  (1522); 
idem,  An  die  herrn  deutschs  Ordens  (original  edition  in  the  author's 
possession,  Wittenberg,  1523);  Bugenhagen,  De  conjugio  ejnscoporum 
et  diaconorum  (1525);  the  anonymous  Underricht  auss  Gottlichen  und 
Gaystlichen  Rechten,  Auch  auss  den  flayschlichen  Bepstlischen  un- 
rechten,  ob  ain  Priester  ain  Eeweyb,  oder  Concubin  ....  haben  moge 
(1526).  See  also  the  elaborate  treatise  of  Calixtus,  De  conjugio  cleri- 
corum  (Frankfort,  1653);  and  the  dissertation  of  Roldanus,  De  mente 
Pauli,  volentis  episcopum  esse  unius  uxoris  maritum  (Lugd.  Bat.,  1710). 

On  the  famous  "  double  marriage  "  of  Landgrave  Philip  of  Hesse  a 
source  of  unique  interest  is  the  Argumenta  Buceri  pro  et  contra,  a 
manuscript  by  Bucer  written  in  1539  and  first  published  at  Cassel  in 
1878.  The  original  documents  in  the  case  are  appended  to  the  exceed- 
ingly lively  work  of  Arcuarius,  Kurtze,  Dock  unpartheyisch-  und  Gewis- 
senhaffte  Betrachtung  des  ....  Heiligen  Ehestandes  (IQld),  decidedly 
inclining  to  the  side  of  Luther  and  his  colleagues.  Beza,  Tractatio  de 
poZi/gramia  (Geneva,  1568),  replies  to  the  defense  of  polygamy  by  Ochino, 
Dialogue  (Zurich,  1563;  Eng.  trans.,  London,  1657).  The  most  cele- 
brated book  produced  in  this  controversy  is  Theophilus  Alethaeus's 
(Johann  Lyser's)  Discursus  politicus  de  polygamia  (2d  ed.,  Freiburg, 
1676);  or  the  same  with  the  prefixed  general  title,  Polygamia  triumpha- 
trix  (Londini  Scanorum,  1682),  this  edition  containing  the  learned  and 
very  elaborate  notes  of  "Athenasius  Vincentius"  who  is  none  other  than 
Lyser  himself.  The  first  edition,  in  German,  is  entitled  Politischer 
Discurs  zwischen  Monogamo  und  Polygamo  (Freiburg,  1675).  Lyser  is 
harshly  answered  by  Johann  Frischen,  Unvorgreiffliche  Erorterung  der 


366  Matrimonial  Institutions 

Frage :  Was  von  derPolygamie  Oder  Viel-Weiherey  zu  halten  sey  (Ham- 
burg, 1677);  and  more  coarsely  by  "Simplicius  Christianus,"  Eilfer- 
tiges  Anticort-Schreiben  ....  Darin  eine  Summarische  Widerlegung 
des  jjolitischen  Discurs  von  der  Viel-Weiherey,  so  ein  Atheistischer 
Huren-Teuffel  J.  L.  Bosshafftiglich  ausgestreuet, enthalten  ist  (Leipzig, 
1677).  In  this  connection  see  also  Thomasius,  De  concubinatu  (Halle, 
1713);  Baumgart,  De  concubinatu,  a  Christo  et  apostolis  prohibito 
(Halle,  1713);  N.  N.,  De  licito  concubinatu  opponewda  (Freistadt,  1714); 
Michaelis,  Paralipomena  contra  polygamiam  (Gottingen,  1757);  Swin- 
deven,  De  polygamia  (Groningae,  1795);  Premontval,  Lamonogamie  (La 
Haye,  1751);  or  the  translation  by  Windheim  entitled  Des  Herrn  Pre- 
montvals  Monogamie  (Nuremberg,  1753);  Rantzow,  Discussion  si  la 
polygamic  est  contre  la  loi  nat.  ou  divine  (St.  Petersburg,  1774);  and  the 
works  of  Madan,  Cookson,  and  others  mentioned  in  the  next  chapter. 
An  interesting  monograph  based  on  the  correspondence  of  Bucer  and 
the  landgrave  is  Rady's  Die  Reformatoren  in  ihrer  Beziehung  zur  Dop- 
pelehe  des  Landgrafen  Philipp  (Frankfort  and  Lucerne,  1890).  Luther's 
alleged  sensuality  and  coarseness  of  speech  are  examined  by  "Luther- 
ophilus,"  Das  seehste  Gebot  und  Luthers  Leben  (Halle,  1893);  with 
which  may  be  read  Altenrath,  Zur  Beurtheilung  und  Wurdigung 
Martin  Luthers  (Frankfort,  1889). 

Typical  of  an  extensive  literature  in  the  sixteenth  century,  whose 
aim  is  the  appreciation  and  elevation  of  marriage,  is  Adam  Colbius  von 
Buchen's  Christliche  Predigten  uber  das  Buck  Tobie,  darinnen,  als  in 
einem  lustigen  Ehespiegel  ....  vom  heyligen  Ehestandt  ....  erkld- 
ret  wirdt  (Frankfort,  1592).  On  the  other  hand,  in  contempt  of  woman- 
hood and  in  mockery  of  wedlock  was  produced  a  mass  of  prose  and 
verse  coarse  and  unclean  beyond  description.  Both  kinds  of  writing— 
the  evangelical  Ehespiegel  and  the  literature  dedicated  to  "St.  Gro- 
bian  " — are  treated  in  an  instructive  way  by  Kawerau,  Die  Reformation 
und  die  Ehe  (Halle,  1892).  To  aid  in  obtaining  a  more  complete  con- 
ception of  post-Reformation  sentiment  may  also  be  consulted  Agrippa, 
De  nobilitate  et  praecellentia  foeminei  sexus  libellus  (Coloniae,  1532, 
1567) ;  Saxse,  Arcana  annuli  jironubi.  Das  ist :  Geheimnis  und 
bedeutung  des  Ehelichen  Traw  Ringes  (Leipzig,  1594);  Miiller,  Unge- 
rathene  Ehe,  oder  vornehmste  Ursachen,  so  heute  den  Ehestand  zum 
Wehestand  machen  (Frankfort,  1674);  Lehman,  Florilegium  politicum 
auctum  (Frankfort,  1662);  and  Feyerabend,  De  privilegiis  mulierum 
(Jena,  1672).  Two  learned  general  treatises,  untouched  by  the  Reforma- 
tion doctrines,  are  Johannis  Nevizianus's  Sylvae  nuptialis  libri  sex 
(Lugduni,  1556),  containing  a  vast  amount  of  curious  matter  ostensibly 
designed  to  aid  in  solving  the  question,  "^n  nubendum  sit,  vel  non;" 
and  Antonius  Gubertus  Costanus's  De  sponsalibus,  matrimoniis  et 
dotibus  commentarius  (Marpurgi,  1597),  dealing  in  a  clear  and  scholarly 


1 


Protestant  Conception  of  Marriage   307 

manner  with  the  matrimonial  institutions  of  the  Hebrews,  Greeks, 
Romans,  and  Christians  under  the  canon  law. 

Several  doctrines  of  Luther  and  the  early  Reformers  have  each 
produced  a  literature.  Whether  under  various  conditions  parental 
consent  is  necessary  to  a  legal  or  valid  marriage  is  discussed  by  Lohen, 
De  parentum  ad  nuptias  a  liheris  contrahendas  consensu  (Regiomonti, 
1685);  Lauginger,  De  consensu  parentum  ad  nuptias  liberorum  (Regio- 
monti, 1699);  Schmalian,  De  ambitu  connubiali:  Vom  Frey-Werben 
(Wittenberg,  1745);  especially  by  the  two  great  leaders  of  the  "natural- 
istic" movement,  Thomasius,  De  validitate  conjugii  invitis  parentibus 
contracti  et  per  benedictionem  sacerdotis  depositi  consummati  (Leipzig, 
1689);  Halle  and  Leipzig,  1722),  and  J.  H.  Boehmer,  De  matrimonio 
coacto  (Halle,  1735).  With  the  last-named  dissertation  may  be  read 
G.  L.  Boehmer's  De  copulae  sacerdotalis  a  deposito  clerico  furtim  impe- 
tratae  injusto  favore  (Gottingen,  1745);  Delbriick's  De  matrimonio  ad 
benedictionem  sacerdotis  incompetentis  contracto  (Halle,  1759);  and  in 
general  on  the  doctrine  of  espousals,  GreifF,  De  pactis  futurorum  spon- 
saliorum:  von  Ja-Wort  (Halle,  1712);  Schelhas,  De  clandestinis  spon- 
salibus  juratis:  Vulgo  von  heimlichen  Verlobniissen  (Jena,  1716); 
Bendeleben,  De  diver  so  sponsalium  et  matrimonii  jure  (Halle,  1718); 
Sahme,  De  matrimonii  legitimo  absque  benedictione  sacerdotali  (Halle, 
1722);  Berger,  De  praescriptione  sponsaliorum  (Wittenberg,  1724); 
Richardus,  De  conditionalibus  sponsaliorum  impossibilibus  (Halle, 
1741;  presented,  1701);  Wachsmuth,  Z)e  exceptione  sponsaliorum  clan- 
destinorum,  ab  ipso  contrahente  opposita  (Jena,  1754).  See  further,  on 
special  questions,  Mentzer,  Num  sponsis,  ante  solennem  in  ecclesiae  copu- 
lationem,  et  benedictionem,  concubentibus,  publica  poenitentia  juste 
imponatur?  (6th  reprint,  Wittenberg,  3728);  Willenberg,  De  matrimonio 
imparum  (Halle,  1727);  Bennemann,  De  natura  matrimonii  (Halle, 
1708);  KruU,  De  nuptiis  (Wittenberg,  16.32);  Schnetter,  De  matrimonio 
cum  damnato  ad  mortem  contrahendo  (Halle,  1727;  presented,  1679). 

In  the  modern  scientific  literature  of  the  subject  the  first  place 
belongs  to  the  general  treatise  of  Richter,  Lehrbuch  (8th  ed.,  Leipzig, 
1886);  the  Lehrbuch  of  Friedberg  (3d  ed.,  Leipzig,  1889);  and  Scheurl's 
Das  gemeine  deutsche  Eherecht  (Erlangen,  1882).  An  older  work,  very 
thorough  and  very  careful  in  the  citation  of  the  literature,  is  Hofmann's 
Handbuch  des  teutschen  Eherechts  (Jena,  1789);  while,  besides  the 
books  of  Goschl,  Lobethan,  Schott,  and  Staudlin  elsewhere  described, 
Loy's  Das  protestantische  Eherecht  (Nuremberg  and  Altdorf,  1793)  is  of 
service.  Much  valuable  biographical  and  bibliographical  material  may 
be  found  in  the  great  work  of  Schulte,  Die  Geschichte  der  Quellen  und 
Litteratur  des  canonischen  Rechts  (Stuttgart,  1875-80).  Important 
monographs  are  Schubert's  Die  evangelische  Trauung  (Berlin,  1890); 
Scheurl's  Die  Entwicklung  des  kirchlichen  Eheschliessungsrechts  (Er- 


368  Matrimonial  Institutions 

langen,  1877);  DieckhoflF's  Die  kirchliche  Trauung  (Rostock,  1878);  and 
there  is  an  able  article  by  Goeschen, "  Ehe,"  in  Herzog's  Encyclopaedie, 
III  (Stuttgart  and  Hamburg,  1855).  For  the  present  state  of  German 
matrimonial  law  consult  Blumstengel,  Die  Trauung  in  evangelischem 
Deutsehland  nach  Recht  und  Ritus  (Weimar,  1879);  Klein,  Das  heutige 
Eherechtim Herzogthum Sachsen-Altenburg  (Strassburg,  1881);  Stolzel, 
Deutsches  Eheschliessungsrecht  nach  amtlichen  Ermittelungen  (3d 
ed.,  Berlin,  1876);  and  Hergenhahn's  work  elsewhere  mentioned.  Sev- 
eral e^rly  church  ordinances,  and  a  number  of  matrimonial  decisions  of 
rare  interest  from  the  consistory  court  of  Wittenberg,  commencing  soon 
after  its  formation,  are  communicated  by  Schleusner, "  Zu  den  Anfangen 
des  protestantischen  Eherechts,"  in  ZKG.,  VI,  XII,  XIII  (Gotha,  1881, 
1891, 1892).  The  "  Bedencken  "  or  ordinance  adopted  at  Dresden  in  1556 
by  the  three  Saxon  consistories,  with  other  matter,  is  also  published  by 
Muther,  "Drei  Urkunden  zur  Reformationsgeschichte,"  in  Niedner's 
Zeitschrift  filr  historische  Theologie,  XXX  (Gotha,  1860).  These  same 
documents  and  also  the  famous  case  cf  Caspar  Beyer  (1543-i4)  are  dis- 
cussed by  Mejer,  "Anfange  des  Wittenberger  Consistoriums,"  in  ZKR., 
XIII  (Tubingen,  1876).  Mejer,  "  Zur  Geschichte  des  altesten  protest- 
antischen Eherechts,"  ibid.,  XVI  (Freiburg  and  Tubingen,  1881),  gives 
an  excellent  historical,  biographical,  and  bibliographical  account  of  the 
Wittenberg  consistory ;  and  the  two  preceding  articles,  with  a  discus- 
sion of  the  establishment  of  the  consistory  of  Rostock,  are  reprinted  in 
his  Zum  Kirchenrechte  (Hanover,  1891).  Original  material  is  commu- 
nicated by  Fischer,  "Die  alteste  evangelische  Kirchenordnung  .... 
in  Hohenlohe,"  in  ZKR.,  XV  (Freiburg  and  Tubingen,  1880),  and  by 
Friedberg,  Aus  der  protestantischen  Eherechtspflege  des  16,  Jahrhun- 
derts,  reprinted  from  ZKR.,  IV  (Tubingen,  1864),  containing,  in  connec- 
tion with  the  case  of  Zaschwitz,  letters  and  other  papers  of  Melanchthon 
regarding  forbidden  degrees.  Another  article  of  Friedberg,  "  Beitrage 
zur  Geschichte  des  brandenburgisch-preussischen  Eherechts,"  ibid.,  VI, 
VII  (Tubingen,  1866-67),  includes  the  very  long  petition  of  Dr.  Stiel 
(1553)  for  enforcement  of  a  betrothal,  with  other  original  documents 
relating  to  matrimonial  doctrine  and  judicial  practice.  A  history  of 
"conditional  marriages"  is  given  by  Phillips,  "Das  Ehehinderniss  der 
beigef  ugten  Bedingung,"  ibid.,  V,  VI  (Tubingen,  1865-66) ;  and  the  rise 
of  the  Protestant  doctrine  regarding  the  impediment  of  relationship  is 
discussed  by  Scheurl,  "Zur  Lehre  von  dem  Ehehindernisse  der  Ver- 
wandtschaft,"  ibid.,  XVI  (Freiburg  and  Tubingen,  1881).  See  also  the 
monograph  of  Berg,  Ueber  die  Verbindlichkeit  der  kanonischen  Ehe- 
hindernisse in  Betriff  der  Ehen  der  Evangelischen  (Breslau,  1835). 

On  the  controversy  regarding  "  mixed  marriages  "  and  marriages  of 
diverse  religion,  consult  Gregorovius,  De  mat.  person,  diversae  relig. 
(Regiomonti,  1712);  Carpzovius,  Circa  nuptias  person,  diversae  relig. 


Protestant  Conception  of  Marriage       369 

(Wittenberg,  1735);  Breitenbach,  De  mat.  allopMlorum  (Giessen,  1740); 
Zum-Bach,  Ueber  die  Ehen  zwischen  Katholiken  und  Protestanten 
(Cologne,  1820);  Ueber  die  gemisehten  Ehen  (Stuttgart,  1827);  Witt- 
mann,  Katholische  Grundsdtze  ilber  die  Ehen  welche  zwischen  Ka- 
tholiken und  Protestanten  geschlossen  werden  (Stadtamhof,  1831); 
Kutschker,  Die  gemisehten  Ehen  von  dem  katholisch-kirchlichen 
Standpuncte  (Vienna,  1838);  Nationaler  und  historischer  Standpunkt 
(Cologne  and  Vienna,  1838);  Sack,  Die  katholische  Kirche  innerhalb 
des  Protestantismus  (Cologne,  1838);  Bessel,  Die  gemisehten  Ehen 
(Frankfort,  1839);  Mack,  Die  Einsegnung  der  gemisehten  Ehen 
(Tubingen,  1840);  Perronne,  Ueber  die  gemisehten  Ehen  (Augsburg, 
1840);  Eintracht  gibt  Macht  oder  ....  Nothwendigkeit  zu  einem 
gleichmdssigen  Verfahren  in  Hinsicht  auf  die  gemisehten  Ehen 
(Diisseldorf,  1844);  Die  gemisehten  Ehen  in  der  Erzdioeese  Frei- 
burg (Regensburg,  1846);  Binterim,  An  matrimonio  mixto  (Dflsseldorf, 
1846);  idem,  Dissertatio  altera  (Dflsseldorf,  1847);  Der  Streit  Uber 
gemischte  Ehen  .  ...  in  Baden  (Karlsruhe,  1847);  Beleuchtung  [of  the 
foregoing]  Karlsruher  Schrift  (Schaflfhausen,  1847);  Hilse,  Civil-  und 
Misch-Ehe  (Berlin,  1869);  and  Hubler,  Eheschliessung  und  gemischte 
Ehen  in  Preussen  (Berlin,  1883). 

For  England  the  principal  source  is  the  Works  of  the  Fathers  and 
Early  Writers  of  the  Reformed  English  Church,  published  by  the 
Parker  Society  (Cambridge,  1841-55).  Among  the  large  number  of 
books  comprised  in  this  series,  those  of  Latimer,  Cranmer,  Tyndale, 
Jewell,  Hooper,  Bullinger,  Parker,  Coverdale,  and  particularly  Whit- 
gift's  Defence  of  the  Answer  (containing  also  Cartwright's  Reply  to  the 
Answer)  have  been  of  most  service.  Three  important  treatises  of  the 
English  Reformation  period  bearing  on  marriage  and  the  family  are 
Coverdale's  translation  of  The  Christen  State  of  Matrimonye  (1541); 
Whitforde's  A  Werkefor  housholders  (1530,1537);  and  Vives's  ( Vivus's) 
A  very  frvteful  and  pleasant  booke  called  the  Instruction  of  a  Christen 
Woman  ....  tourned  out  of  latyne  into  Englische  by  Rycharde  Hyrde 
(London,  1557).  The  original  may  be  found  in  Vol.  II,  650-755,  of  Vives's 
Opera  (Basel,  1555);  and  Rudolph  Heine  has  a  German  translation  in 
Vol.  XVI  of  Richter's  Pddagogische  Bibliothek  (Leipzig,  n.  d.).  Much 
valuable  material  may  also  be  found  in  Gee  and  Hardy's  Documents 
(London,  1896);  Prothero's  Select  Statutes  and  Other  Constitutional 
Documents  (Oxford,  1894);  while  the  Statutes  at  Large  (Raithby,  Lon- 
don, 1811)  are  of  course  in  constant  requisition.  The  more  important 
acts  relating  to  marriage  are  contained  in  Vol.  I  of  Evans's  convenient 
Collection  of  Statutes  (London,  1823).  Swinburne's  fascinating  Treatise 
of  Spousals  (London,  1686),  written  in  the  last  days  of  Elizabeth's  reign, 
but  published  a  century  later,  is  indispensable  for  understanding  the 
law  and  theory  of  the  matrimonial  contract  during  the  Tudor  period. 


370  Matrimonial  Institutions 

Some  assistance  has  also  been  gained  from  the  collections  of  Hale, 
Johnson,  and  Wilkins  mentioned  in  preceding  notes. 

The  exhaustive  treatment  of  the  Protestant  conception  of  marriage 
for  Germany  contained  in  Friedberg's  great  work  on  Ehesehliessung 
(Leipzig,  1865),  supplemented  by  his  suggestive  monograph  Geschichte 
der  Civilehe  (Berlin,  1877),  leaves  little  for  others  to  do.  Sohm's  Ehe- 
sehliessung is  also  important.  For  England  Makower  has  a  brief  but 
excellent  discussion;  and  much  illustrative  material  may  be  found  in 
Burn's  Parish  Registers  (London,  1862);  Wood's  Wedding  Day  (New 
York,  1869);  Donee's  Illustrations  of  Shakespeare  (London,  1807); 
Brand's  Popular  Antiquities  (new  ed.,  London,  1873-77);  Burnet's  gos- 
sipy History  of  the  Reformation  (London,  1850);  and  Jeaffreson's 
Brides  and  Bridals  (London,  1872).  Nichols,  Progresses  .  ...  of  King 
James  the  First  (London,  1828),  gives  an  interesting  example  of  the 
former  practice  of  public  betrothals ;  and  the  same  may  also  be  found 
in  Leland's  Collectanea,  V  (2d  ed.,  London,  1770).  Queen  Mary's  Articles 
(1553)  regarding  married  priests  and  some  other  important  papers  are 
given  in  Cardwell's  Documentary  Annals  (Oxford,  1839, 1844).  Palmer's 
Origines  liturgicae  (3d  ed.,  Oxford,  1839 ;  4th  ed.,  London,  1845)  has  also 
been  of  service ;  while  new  light  is  thrown  on  social  conditions  in  Eliza- 
beth's reign  by  the  unique  collection  of  documents  edited  for  the  Early 
English  Text  Society  by  Furnivall,  Child-Marriages,  Divorces,  and 
Ratifications  (London,  1897).] 

I.       AS    TO    THE    FOEM    OP    MAREIAGE 

The  Protestant  Reformation  in  Germany  produced  many 
ideas  which  were  eventually  fruitful  for  good  in  the  history 
of  matrimonial  law;  but  unfortunately,  owing  to  a  number 
of  causes,  more  than  two  centuries  were  to  elapse  before 
any  effective  remedy  was  provided  for  the  evils  of  clandes- 
tine wedlock.  Ecclesiastical  rites  were  prescribed  by  the 
authority  of  the  state  as  the  best  means  of  securing  pub- 
licity ;  but  neither  Luther '  nor  the  other  Protestant  leaders 
insisted  upon  them  as  necessary  to  a   binding   marriage.  *- 

1  See  the  extracts  illastrating  Luther's  views  as  to  the  form  of  ■wedlock  in 
Steampff,  337-44. 

2  Consult  the  elaborate  investigation  of  Feiedbeeg,  Ehesehliessung,  198-305; 
idem,  Die  Geschichte  der  Civilehe,  7  ff. ;  with  which  should  be  compared  Sohm,  Ehe- 
sehliessung, chap,  vii,  and  his  Trauung  und  Verlobung,  chap.  iv. ;  Scheuel,  Ent, 
des  kirch.  Ehesehliessungsrechts,  123  £F.,  126  ff. ;  idem.  Das  gemein.  deutsch.  Eherecht, 
64-73;  BiECKSOFF,  Die  kirch.  Trauung,  108  ff.,  180ff.,223ff.  (views  of  Melanchthon, 
Chemnitz,  and  others) ;  Mejee,  Zum  Kirchenrechte,  154  ff.  (views  of  Kling,  Mauser, 
Schneidewin,  Wesenbeck,  Monner,  and  Beust  — all  connected  with  the  consistory  of 
Wittenberg) ;  Schubeet,  Die  evang.  Trauung,  41  ff.,  49  ff. ;  Eichtee,  Lehrbuch,  1136  ff. 


Protestant  Conception  of  Marriage       371 

Luther,  indeed,  perceived  the  absurdity  of  the  scholastic  dis- 
tinction between  sponsalia  de  praesenti  and  de  futuro;  and 
proposed  to  retain  espousals  de  futuro  or  precontracts  only 
in  the  sense  of  "conditional  betrothals."^  On  failure  of  the 
condition,  or  for  other  weighty  reasons,  these  engagements 
miofht  be  dissolved.  But  unconditional  betrothals,  or  his 
sponsalia  depraesenti — that  is  to  say,  practically  all  betroth- 
als, including  the  espousals  de  futuro  of  the  canonists — if 
publicly  made  and  with  parental  consent,  were  regarded  by 
Luther  as  valid  marriages  which  could  not  be  dissolved.^ 
Parental  consent '  he  appears  to  think  essential,  though  on 

1 "  l)as  liess  ich  wohl  verba  de  futuro  heissen,  ■wenn  ein  conditio,  Anhang  oder 
Anszug  dabei  gesetzt  wtlrde,  als :  Ich  will  dich  haben,  wo  du  mir  willt  zu  gut,  zwei 
oder  ein  Jahr  barren;  item:  Ich  will  dich  haben,  so  du  mir  hundert  Gulden  mit- 
bringest;  item:  so  deine  oder  meine  Aeltern  wollen;  und  dergleichen." — Luthee, 
"Von  Ehesachen,"  Biicher  und  Schriften  (Jena,  1561),  V,  241. 

As  an  illustration  of  the  early  judicial  practice  see  the  interesting  decision  of 
the  consistory  court  of  Wittenberg,  among  the  cases  published  by  Schleusnee, 
Anfatige  des  protest.  Eherechts,  136,  where  a  contract  is  dissolved  for  failure  of  the 
condition.    The  case  is  undated,  but  it  probably  occurred  before  1550. 

Conditional  espousals  were  recognized  by  the  canon  law:  for  England  see 
SwiNBUENE,  Of  Spousals,  109-53,  where  the  many  intricate  questions  connected 
with  conditional  contracts  are  discussed  with  much  learning;  and  in  general  th» 
monograph  of  Riedlek,  Bedingte  Eheschliessung  (Kempten,  1892). 

With  Luther's  views  regarding  conditional  betrothal  compare  those  of  Melanch- 
thon,  "  De  conjugio,"  Opera  omnia,  I,  pars  ii,  232 ;  Schneidewin,  De  nuptiis,  tit.  x, 
"  De  spons.,"  pars  i,  32-38;  Beust,  I>e  spwis.  et  mat.,  sees,  xviii,  xix;  Kling,  Tr.  mat. 
causarum,  foil.  73  ff . ;  Beouwee,  De  jure  con.,  188-204.  For  discussion  see  Schleusnee, 
"  Zu  den  Anfangen  des  prot.  Eherechts,"  ZKG.,  VI,  402-5;  Scheuel,  "  Zur  Geschichte 
des  kirch.  Eheschliessungsr.,"  ibid.,  XV,  69,  70;  idem.  Das  gemein.  deutsche  Eherecht, 
368-70;  Richaedus,  De  cond.  sponsaliorum  impossibilibus,  29  ff.,  passim;  Richtee, 
Lehrbuch,  1061  ff.,  1200;  and  especially  the  excellent  historical  paper  of  Phillips, 
"Das  Ehehinderniss  der  beigefugten  Bedingung,"  ZKR.,  V,  VI,  153 ff.,  reviewing 
the  literature  of  the  subject  from  the  sixteenth  to  the  nineteenth  century ;  Schott, 
Einleit.  in  das  Eherecht,  199  ff. 

2  For  a  collection  of  the  writings  of  Luther  on  precontracts  or  betrothals  see 
Steampff,  287-334;  especially  the  extract  from  the  Von Ehesachen,^'^,  where  breach 
of  troth  is  made  equivalent  to  adultery. 

3  The  passages  of  Luther's  works  on  parental  consent,  with  an  introductory 
note,  are  collected  in  Steampff,  299-325.  Compare  Beust,  De  spons.  et  mat.,  201-10; 
Melanchthon,  "  De  conjugio,"  Opera  omnia,  I,  pars  ii,  231;  Bdllingee,  Der  Christ- 
lich  Ehestand,  Ivs.  11  ff.,  14, 15;  Kling,  Tr.  mat.  causarum,  foil.  77  ff. ;  Schneidewin, 
De  nuptiis,  tit.  x,  "  De  nupt.  Ileitis,"  pars  ii,  sees.  29  ff. ;  Beenz,  "  Wie  yn  Ehesachen 
....  zu  Handeln,"  in  Saeceeius,  Vomheil.Ehestande,io\\.&9S.;  Mentzee,  De  con- 
jugio  tr.,  136-50,  153;  BiDEMBACH,  De  causis  mat.  tract.,  3ff.,  15  ff. ;  Foester,  De 
nuptiis,  145  ff .,  149  ff.  (the  law  of  Saxony  requiring) ;  Beouwee,  De  jure  connubi- 
orum,  71  ff.,  76  ff.,  89  ff. 

All  authorities,  seemingly,  are  agreed  that  a  parent  may  not  rightly  force  a 
child  to   marry;  see  Bulungee,  Der  christlich  Ehestand,  Ivs.  15,  16;  Schneids- 


372  Matrimonial  Institutions 

this  point  his  statements  are  by  no  means  clear  ;^  and  he 
urges  the  need  of  public  espousals  in  face  of  the  parish.^ 
Yet  he  admits  that  a  secret  engagement — by  which  he  seems 
to  mean  espousals  without  the  presence  of  witnesses,  but 
with  parental  consent — if  followed  by  physical  union,  con- 
stitutes a  true  marriage  equally  binding  with  the  open 
betrothal.  In  effect,  the  doctrine  of  Luther  did  not  provide 
a  complete  remedy  for  the  evils  of  clandestine  contract ;  for 
all  marriages,  save  only  the  conditional  when  not  consum- 
mated, and  possibly  those  formed  secretly  against  the  par- 
ents' will,  were  now  indissoluble  at  the  will  of  the  parties.^ 

WTN,  De  nupt.,  tit.  x,  "  De  nupt.  Ileitis,"  pars  ii,  sees.  41,  42;  Saecekics,  Vom  heil, 
Ehestande,  foil.  73£E. ;  96  ff.  (Luther) ;  Mentzee,  De  conjugio  tr.,  253-55 ;  Bidembach, 
De  cavsis  mat.,  25-27 ;  Boehmer,  De  viat.  coacto;  and  the  literature  on  parental  eon- 
sent  described  in  Bibliographical  Note  IX. 

1  In  his  "  Von  Ehesachen  "  (1530),  Bttcfter  und  Schriften,  V,  247,  he  says  directly 
that  a  public  betrothal,  that  is  a  marriage,  not  followed  by  copula  should  yield  to 
an  earlier  secret  betrothal  cum  copula.  It  is  argued,  however,  that  by  "  secret "  he 
means  a  betrothal  without  witnesses,  but  with  consent  of  the  parents :  Feiedbeeg, 
Eheschliessung,  209  n.  2,  210  n.  1 ;  Sohm,  Eheschliessung,  206  n.  16.  Luthee's  "  Von 
Ehesachen,"  Bilcher  und  Schriften,  V,  237-57,  is  mainly  devoted  to  a  discussion  of 
secret  and  public  betrothals. 

As  a  matter  of  fact,  I  find  the  consistory  court  of  Wittenberg  dissolving  a 
betrothal  for  lack  of  parental  consent :  Schleusnee,  Anfdnge  des  protest.  Eherechts, 
137.  In  another  interesting  case  a  girl  was  persuaded  by  her  lover  to  marry  him 
without  the  consent  of  her  mother  or  step-father,  but  saying:  "I  would  not,  how- 
ever, offend  my  dear  mother."  The  two  clerical  Judges  held  the  contract  to  be  con- 
ditioned on  getting  the  mother's  consent,  and  therefore  void,  since  the  condition 
had  not  been  fulfilled  and  the  law  of  Saxony  forbade  marriages  without  parental 
consent.  The  two  lay  judges,  however,  held  the  contract  binding,  because  the  girl's 
father  being  dead,  to  whom  real  authority  belonged,  she  was  free  to  marry  whom 
she  chose.  The  case  was  referred  to  Luther  and  another  person  as  arbiters.  Luther, 
in  opposition  to  his  associate,  held  the  marriage  void  because  conditional  and  a 
violation  of  the  fourth  commandment,  and  the  court  accepted  his  opinion :  Schleds- 
NEE,  op.  cit.,  138, 139. 

2  The  consistory  court  of  Wittenberg  declared  a  public  betrothal  legal  as 
opposed  to  an  earlier  secret  engagement :  see  the  case  in  Schleusnee,  Anfdnge 
des  protest.  Eherechts,  140;  and  for  other  cases  cf.  ibid.,  145, 146. 

3  On  espousals,  especially  clandestine  contracts,  compare  Schneidewin,  De 
nuptiis,  tit.  x,  "  De  spons.,"  pars  i,  sees.  1  ff.,  21  ff. ;  Beust,  Tr.  de  spons.  et  mat.,  1  ff., 
12  ff.,  27  ff.  (sponsalia  clandestina) ;  Kling,  Tr.  mat.  causarum,  Ivs.  Iff.,  6ff.,68ff. 
{sponsalia  clandestina)  ;  Saeceeius,  Voni  heil.  Ehestande,  foil.  67  ff.,  91  ff.,  73  ff. 
(Luther) ;  Mentzee,  De  conjugio  tr.,  156  ff.,  168  ff. ;  Bidembach,  De  causis  mat.  tr., 
3ff.,  29-35;  Foestee,  De  nuptiis,  52  ff. ;  Beouwee,  De  jure  connubiorum,  9ff.,  100  ff. ; 
and  the  literature  on  sponsalia  mentioned  in  Bibliographical  Note  IX. 

For  discussion  see  Scheuel,  Die  Entwick.  des  kirch.  Eheschliessungsrechts,  130  ff., 
140  ff . ;  ScHDBEET,  Die  evang.  Trauung,  44  ff . ;  Ceemee,  Kirch.  Trauung,  68-71 ;  Dieck- 


Protestant  Conception  of  Marriage       373 

Moreover,  an  action  was  allowed  to  enforce  a  promise  of 
marriage;  and  for  more  than  two  centuries  after  the  Refor- 
mation the  fulfilment  of  a  betrothal  could  be  enforced  by 
severe  penalties.'  Yet  in  one  respect  there  was  a  decided 
advance.  The  pernicious  distinction  of  Peter  Lombard 
between  espousals  de  praesenii  and  de  fiituro  was  practically 
rejected,  and  with  it  much  of  the  danger  which  had  lurked  in 
the  vacillating  discretion  of  the  ecclesiastical  judge  might  have 
been  removed  had  the  jurists  accepted  Luther's  teaching.^ 
Thus  from  a  historical  point  of  view  the  result  is  instructive. 
The  ancient  ivette  or  heweddung,  handed  down  through  the 
slightly  weakened  form  of  the  canonical  sponsalia  de  prae- 
senti,  was  restored  to  even  more  than  its  original  relative 
importance  as  compared  with  the  Trauung  or  nuptials.^ 

HOFF,  Die  Kirch.  Trauung,  189  ff.,  212  £f.,  221  S. ;  Eichtee,  Lehrbuch,  1121, 1194  flf. ; 
Feiedbeeg,  Lehrbuch,  295,  296,  337-59 ;  LoY,  Dos  protest.  Eherecht,  425  ff.,  437  ff.,  445, 
447  ff. ;  HoFBLANN,  Handbuch  des  teutschen  Eherechts,  27  ff.,  143, 146  ff. ;  Schott,  Ein- 
leitung  in  das  Eherecht,  174  ff.,  182  ff.,  193 ;  Sohm,  Eheschliessung,  197-249. 

iThe  most  famous  case  of  enforcement  of  a  betrothal,  against  an  unwilling 
bride,  is  that  of  Dr.  Stiel,  1553.  The  plaintiff's  petition  {Gesuch)  in  fifty-eight  articles 
or  specifications,  setting  forth  in  a  most  realistic  way  the  whole  courtship  and  the 
betrothal  proceedings,  is  communicated  by  Feiedbeeg,  "  BeitrSge  zur  Geschichte  des 
brand. -preuss.  Eherechts,"  ZKR.,  VI,  72  ff.  Actual  force  to  compel  the  fulfilment  of 
a  betrothal  was  used  only  when  it  was  followed  by  copula:  ibid.,  81.  Friedberg 
traces  the  history  of  the  subject  to  the  reign  of  Frederick  the  Great,  citing  various 
cases.  As  a  result  he  declares  that  in  the  sixteenth  century  betrothed  persons  could 
be  forced  to  keep  their  engagement  even  when  both  were  willing  to  dissolve  it ; 
while  in  the  eighteenth  century  action  depended  upon  the  wiU  of  the  interested  par- 
ties :  ibid.,  87,  88.    Compare  Bidembach,  De  causis  mat.  tr.,  35  ff. 

2  See  the  argument  of  Sohm,  Eheschliessung,  202  ff. ;  Trauung  und  Verlobung, 
110  ff . ;  against  Feiedbeeg,  Eheschliessung,  206,  210 ;  Geschichte  der  Civilehe,  8,  who 
holds  that  Luther  doubled  the  evils  of  secret  marriage. 

3  Sohm,  Eheschliessung,  chap,  vii,  Trauung  und  Verlobung,  chap,  iv,  has 
demonstrated  this  against  the  view  of  Friedberg. 

Nevertheless  by  the  middle  of  the  seventeenth  century  was  established  a  dual- 
ism in  effect  similar  to  that  which  had  existed  under  the  later  canon  law.  More 
and  more  stress  was  placed  upon  the  nuptials  as  compared  with  the  betrothal, 
although  in  theory  the  latter  still  constituted  the  marriage.  J.  H.  Boehmee,  J^^s 
ecclesiasticum  protestantiuni  {S.a.\\e,  1714),  whose  teaching  has  mainly  determined 
the  modern  law,  attacked  Luther  as  being  responsible  for  this  dualism,  holding  that 
a  true  betrothal,  like  the  Roman  sponsalia,  is  only  a  promise  of  future  wedlock,  and 
may  therefore  be  dissolved ;  while  the  nuptial  contract,  publicly  and  formally  made, 
is  the  true  marriage.  On  Boehmer's  doctrines  see  Dieckhoff,  Die  kirch.  Trauung, 
270-95;  Schtibeet,  Die  evang.  Trauung,  62-76;  Scheurl,  Kirch.  Eheschlies.'iuiigsrecht, 
140  ff. ;  Phillips,  "  Das  Ehehinderniss  der  beigefiigten  Bedingxmg,"  ZKR.,  VI,  154. 


374  Matrimonial  Institutions 

The  teachings  of  Luther  regarding  espousals  were  largely 
determinative  for  the  future  history  of  marriage  in  the  Ger- 
man states.  According  to  the  ordinances,  the  doctrine,  and 
the  practice  of  the  evangelical  churches,  the  betrothal  was  a 
true  marriage,  the  nuptials  merely  its  confirmation.'  Even 
his  wavering  as  to  the  necessity  of  parental  consent  for  a 
valid  contract  leaves  its  trace  in  the  divergent  provisions  of 
law.^  In  practice  the  jurists,  against  the  protest  of  Luther,^ 
held  close  to  the  principles  of  the  canon  law.'  As  a  rule, 
the  courts  tended  to  treat  all  secret  betrothals  followed  by 
actual  connubial  life  as  binding  marriages.^  Until  far  down 
into  the  eighteenth  century  the  engaged  lovers  before  the 
nuptials  were  held  to  be  legally  husband  and  wife.**  It  was 
common  for  them  to  begin  living  together  immediately  after 
the  betrothal  ceremony;^  and  the  so-called  "bride  children" 

1 SOHM,  Eheschliessung,  198. 

2 The  church  ordinances  require  sometimes  only  parental  consent;  sometimes 
only  witnesses  ;  or  again  the  solemnization  of  the  betrothal  in  church  is  prescribed, 
with  the  sanction  of  nullity  or  else  a  mere  penalty  for  non-observance :  Sohm,  op.  ciL, 
206,  207 ;  Friedbeeg,  Eheschliessung,  212  ff.,  224,  225.  Eichtee's  Evangelische  Kirchen- 
ordnungen  are  analyzed  by  Meiee,  Jus,  quod  de  forma  mat.  valet,  49  ff. ;  and 
GOESCHEN,  Doctrina  de  mat.,  42  £f. 

sFeiedbeeg,  op.  cit.,  225  ff. 

*  Luther  would  have  entirely  rejected  the  canon  law,  but  even  in  his  immediate 
environment  he  gained  no  following.  Theologians  and  jurists  alike  accepted  it  as 
generally  valid,  giving  it  precedence  over  the  Roman  law.  Only  the  Scriptures  were 
a  higher  authority.  Compare  Mejeb,  Zum  Kirchenrechte,  170, 156  (Kling) ;  idem,  in 
ZKB.,  XVI,  44-48,  73. 

5 Sohm,  op.  cit,  207;  Fetedbeeg,  op.  cit.,  209,  225-27,  261,  277  ff.  The  famous  case 
of  Caspar  Beyer  came  before  the  consistorial  court  of  Wittenberg  in  the  latter  part 
of  1543;  and  its  decision  in  1544  led  to  the  notorious  controversy  between  Luther  and 
the  jurists.  Beyer  wanted  to  marry  Sibylla,  a  ward  of  Melanchthon,  but  he  had  made 
a  clandestine  contract  with  another  woman  without  consent  or  knowledge  of  her 
parents ;  although  it  was  alleged  that  her  brother  had  given  post  facto  assent,  the 
parents  being  perhaps  dead.  Luther  declared  that  such  secret  betrothals  "soUen 
schlecht  keine  Ehe  stiften;"  and  in  1539  or  1540  a  law  of  Saxony  had  forbidden  them. 
A  decision  of  the  consistory,  following  the  doctrine  of  the  canon  law,  sustained  the 
validity  of  Beyer's  marriage ;  but  after  a  "starke  Predigt"  and  long  insistence  by 
Luther  it  was  overruled  by  the  Elector:  Mejer,  "AnfSnge  des  Witt.  Consistoriums," 
ZKR.,  XIII,  28-123;  idem,  Zum  Kirchenrechte,  65  ff. 

6  Sohm,  op.  cit.,  198;  Feiedbekg,  op.  cit.,  208,  209,  225-27,  261,  277  ff.,  299,  300, 

■^  In  Germany  betrothal  rituals  were  sometimes  prescribed  in  the  church  ordi- 
nances: Friedberg,  op.  cit.,  222,  223,  224;  and  public  espousal  ceremonies  were  in 
use  in  England :  Buen,  Parish  Registers,  138  ff. 


Protestant  Conception  of  Marriage       375 

were  given  rights  of  legitimate  ofPspring,  this  custom  in  part 
surviving  until  our  own  times,' 

The  rites  observed  in  the  celebration  of  marriage  differed 
in  some  details  from  those  in  use  before  the  Reformation. 
A  model  was  drafted  by  Luther,  and  it  was  often  followed 
with  variations  in  the  church  ordinances.^  He  does  not  urge 
the  adoption  of  a  service  which  must  be  observed  by  all.  On 
the  contrary,  every  place  may  use  its  customary  form  in  the 
solemnization  of  wedlock.  A  simple  ritual  is,  however,  pro- 
vided for  the  use  of  those  needing  assistance.  When  the 
bride  and  bridegroom  so  require,  the  banns  are  to  be  asked 
in  the  chancel  before  the  wedding.  As  in  the  mediaeval 
formularies  already  examined,  the  nuptial  ceremony  consists 
of  two  acts.  Before  the  church  door  the  wedding  vows  and 
the  wedding  rings  are  exchanged,  the  priest  declaring  to  the 
assembled  people,  in  the  name  of  the  Trinity,  that  he  pro- 
nounces the  man  and  woman  joined  in  marriage.  In  the 
church  before  the  altar  the  second  act  takes  place.  Instead 
of  the  bride-mass,  this  consists  simply  in  the  reading  of  a 
passage  of  Scripture  followed  by  the  priestly  benediction.^ 

1  Feiedbeeg,  op.  cit.,  293,  299,  300.  On  the  Brautkinder  see  Schott,  Einleit.  in 
das  Eherecht,  193, 194 ;  and  on  secret  betrothals  and  the  laws  forbidding  them  consult 
especially  Hofmann,  Handbuch  des  teutschen  Eherechts,  146  fF. ;  and  compare  Lot, 
Das  protest.  Eherecht,  447  ff. 

2  The  earliest  Protestant  marriage  ritual  appears  to  have  been  written  by 
BtJGENHAGEN :  See  the  ritual  (1523)  ascribed  mainly  to  him,  published  with  discussion 
by  SCHUBEET,  Die  evang.  Trauung,  142-53.  Compare  "  Der  Bericht  Christoph  Gernngs 
von  Memmingen  Qber  die  erste  Priesterhochzeit  zu  Augsburg  anno  1523;"  ibid.,  132-41, 
showing  that  the  nuptial  ceremony  is  but  a  confirmation  of  the  sponsalia  de  prae- 
senti  already  concluded. 

3LUTHEE,  "Traubachlein  fur  die  einfaltigen  Pfarrherren"  (1534),  Kleinere 
Schriften,  II,  219-23;  with  which  compare  "Der  kleine  Katechismus"  (1529),  in 
Steampff,  340,  341,  422;  and  the  rituals  analyzed  by  Sohm,  op.  cit.,  197  S.  In  this 
connection  read  Bullingee's  discussion  of  the  proper  conduct  at  weddings  in  Der 
christUch  Ehestand,  Ivs.  59-68 ;  or  the  same  in  Saeceeius,  Vom  heil.  Ehestatide,  foil. 
102-7;  Eilso  BiDEMBACH,  De  causis  mat,  tr.,  3£E. ;  Foestee,  De  nuptiis,  167  ff. ;  and 
Beouwee,  Dejure  connubiorum,  619  £E. 

DiECKHOFF,  Die  kirch.  Trauung,  108-14,  points  out  that  the  exchange  of  rings 
and  the  declaration  of  the  marriage  to  the  assembled  people,  instead  of  saying  to  the 
parties  themselves  the  words  "  Ego  conjungo  vos  in  nomine,''''  etc.,  are  innovations  of 
the  Reformation  period.   For  further  discussion  see  Schubeet,  Die  evang.  Trauung^ 


376  Matrimonial  Institutions 

The  decree  of  the  Council  of  Trent  relating  to  the  nuptial 
celebration  was  not  accepted  in  Protestant  lands,  and  hence 
no  essential  change  was  made  in  the  forms  of  marriage.  In 
England  during  the  whole  period  between  the  Reformation 
and  the  Commonwealth  ecclesiastical  celebration  was  the 
rule ;  and  the  spiritual  courts,  retaining  their  ancient  juris- 
diction in  matrimonial  causes,  still  recognized  the  principles 
of  the  canon  law,  though  appeals  to  Rome  were  not  allowed.' 
Hence  clandestine  contracts  de  praesenti  were  valid  and 
could  be  maintained  against  regular  marriages  subsequently 
solemnized  in  church.  This  fact  is  established  by  abundant 
evidence,^  and  by  none  more  ample  and  convincing  than  that 

51  ff. ;  HoFMANN,  Eandbuch  des  Eherechts,  172  ff . ;  Richtee,  Lehrbuch,  1121  S. ; 
SCHEDEii,  Das  gemeine  deutsche  Eherecht,  63  ff. 

For  examples  of  rules  and  rituals  adopted  by  some  of  the  churches  consult 
RiCHTEK,  Evang,  Kirchenordnungen,  I,  31,  32  ("Landesordnung  des  Herzogthums 
Preussen"),  330,331  (Brandenburg), 347-50  (Geneva)  ;  II,  47,  48  ("COlnische  Reforma- 
tion"), 375-77  (Brandenburg);  especially  Fischer,  "Die  alteste  evang.  Kirchen- 
ordnung  in  Hohenlohe,"  ZKR.,  XV,  1-48;  and  compare  Meier,  Jus,  quod  de  forma 
mat.  valet,  49 ff.;  Goeschen,  Doctrina  de  viat.,  48-,58;  Feiedbeeg,  Eheschliessung, 
212  ff. ;  SonM,  Eheschliessung,  197  ff.,  who  analyzes  the  church  ordinances. 

iBy  24  Hen.  VIII.,  c.  12  (1532):  Statutes  at  Large,  II,  71-73;  Gee  and  Haedy, 
Documents,  187-95,  appeals  to  Rome  in  questions  of  marriage  and  divorce  are  forbid- 
den. Such  cases  may  be  carried  from  the  archdeacon  to  the  bishop,  then  to  the 
archbishop  of  Canterbury  or  York,  whose  decision  is  final.  By  25  Hen.  VIII,  c.  21: 
Statutes  at  Large,  II,  90,  the  archbishop  of  Canterbury  is  given  a  right  of  dispensa- 
tion similar  to  that  formerly  exercised  by  the  pope.  Chapter  19  of  the  same  statute, 
ibid.,  II,  8.5-87;  Gee  and  Haedy,  Documents,  195  ff.,  provides  for  the  appointment  of 
a  commission  of  thirty-two  men  to  examine  the  whole  body  of  canons  in  order  to 
determine  which  should  be  accepted  as  valid ;  but  until  the  commission  should  con- 
clude its  labors  "such  Canons  Constitutions  Ordinances  and  Synodals  Provincial 
being  already  made,"  not  repugnant  to  the  laws  or  customs  of  the- realm,  "  nor  to  the 
Damage  or  Hurt  of  the  King's  Prerogative  Royal,  shall  now  still  be  used  and  exe- 
cuted as  they  were  afore."  No  report  was  made  by  this  commission;  nor  did  the 
Reformatio  legum  ecclesiasticarum  prepared  by  another  commission,  which  was 
provided  for  by  3  and  4  Ed.  VI.,  c.  11:  Statutes  at  Large,  II,  295,  ever  take  effect: 
Feiedbeeg,  Eheschliessung,  310  n.  3.  The  act  of  25  Hen.  VIII.,  c.  19,  was  repealed  by 
1  and  2  Philip  and  Mary,  c.  8 :  Statutes  at  Large,  II,  342  ff. ;  but  again  restored  by 
1  Eliz.,  c.  1 :  Statutes,  II,  379  ff.  So  the  result  was  the  practical  retention  of  the  canon 
law.    Cf.  Feiedbeeg,  op.  cit.,  309-11. 

2  It  is  proved  by  the  celebrated  case  of  Bunting  v.  Lepingwell,  1585-86:  Coke's 
Reports,  11,  355-59.  See  Feiedbeeg's  analysis  of  this  case  and  other  proofs  collected 
by  him :  Eheschliessung,  313-18 ;  also  Swinbuene,  Of  Spousals,  13, 15, 74-108,  especially 
193  ff.,  222  ff.,  236-39,  who  shows  the  canon-law  theory  to  be  in  full  force  in  the  reign 
of  Elizabeth;  and  Ceanmee,  Misc.  Writings,  359,  360.  Hale's  Precedents,  120,  136, 
137, 146, 147, 1G9, 170, 185, 192,  affords  several  interesting  illustrations  for  the  Reforma- 
tion period. 


Protestant  Conception  op  Marriage      377 


afforded  by  the  remarkable  collection  of  documents  recently 
edited  by  Furnivall,  to  which  further  reference  will  pres- 
ently be  made/  But  the  parties  were  subject  to  clerical 
censure  and  the  forfeiture  of  certain  property  rights.^  An 
attempt  was,  indeed,  made  by  Henry  VIII.  in  1540  to  restrict 
the  validity  of  private  marriages  by  providing  in  effect  that 
those  solemnized  by  the  church,  if  consummate,  should  take 
precedence  of  unconsummated  precontracts  not  thus  cele- 
brated; and  the  same  statute  confined  the  impediments  to 
marriage  to  those  comprised  in  the  Levitical  degrees.'^  But 
this  act  had  little  significance  save  in  the  matrimonial  trans- 
actions of  Henry  himself;*  for,  so  far  as  it  related  to  precon- 
tracts, it  was  repealed  by  a  statute  of  Edward  VI.  which  re- 
stored the  former  law  and  provided  that  "when  any  cause  or 
contract  of  marriage  is  pretended  to  have  been  made,  it  shall 
be  lawful  to  the  king's  ecclesiastical  judge  of  that  place  to  hear 
and  examine"  it;  and  after  having  it  "sufficiently  and  law- 
fully proved,"  to  give  "sentence  of  matrimony,  commanding 
solemnization,  cohabitation,  consummation,  and  tractation," 
as  in  times  past  the  king's  spiritual  courts  had  power  to  do.^ 
Referring  to  this  act,  Swinburne,  writing  in  the  reign  of 
Elizabeth,  bears  witness  to  the  strength  with  which  the 
canonical  theory  of  espousals  had  laid  hold  of  the  legal  mind. 
"Worthily,  I  say,  and  upon  good  ground  was  this  Branch 
of  that  Statute"  of  King  Henry  relating  to  precontracts 
"  repealed  and  made  void  by  his  gracious  Son  King  Edward 

1  FCENlVAiiL,  Child-Marriages,  Divorces,  and  Ratifications,  in  the  Diocese  of 
Chester,  1561-6  (edited  for  the  Early  Eng.  Text  Society,  London,  1897),  especially 
56-71,  184-202  (trothplights),  140,  141  (clandestine  marriages),  72-102  (adulteries  and 
aflBliations). 

2SWINBUENE,  Of  Spousals,  15,  233-35;  Friedbeeg,  op.  cit.,  315  n.  4. 

3  32  Hen.  VIII.,  c.  38:  Statutes  at  Large,  II,  173,  174;  Evans,  Statutes,  1, 152-54. 
The  act  of  25  Hen.  VIII.,  c.  22:  Evans,  1, 151,  prescribes  the  Levitical  degrees. 

*  Friedbeeg,  op.  cit.,  311,  312.  See  the  elaborate  discussion  of  the  divorce  con- 
troversy by  BuENET,  Hii;t.  of  the  Reformation,  I,  26  fE.,  particularly  74  ff. 

5  2  and  3  Ed.  VI.,  c.  23:  Statutes  at  Large,  II,  284,  285;  Evans,  Statutes,  I,  154, 
155.    Cf.  Jeaffreson,  Brides  and  Bridals,  1, 114  f.,  124  ff. 


378  Matrimonial  Institutions 

the  Sixth,  for  Spousals  de  praesenti,  though  not  consum- 
mate, be  in  truth  and  substance  very  Matrimony,  and  there- 
fore perpetually  indissoluble,  except  for  Adultery :  Although 
by  the  Common  Laws  of  this  Realm  (like  as  it  is  in  France 
and  other  places)  Spousals  not  only  de  fiituro,  but  also  de 
praesenti  be  destitute  of  many  legal  Effects  wherewith 
Marriage  solemnized  doth  abound,  whether  we  respect 
legitimation  of  Issue,  alteration  of  property  in  her  Goods, 
or  right  of  Dower  in  the  Husbands  Lands."  ' 

Indeed,  for  the  law  and  custom  of  betrothal  in  England, 
toward  the  close  of  the  sixteenth  century,  the  quaint  and 
recondite  treatise  of  Swinburne  is  a  mine  of  information.  A 
vast  number  of  questions  illustrative  of  the  principles,  the 
snares  and  perplexities,  of  the  surviving  canonical  theories 
are  there  taken  up  and  "resolved"  with  singular  brevity  and 
clearness.  "Albeit,"  he  says,  "this  word  Sponsalia  (Eng- 
lished Spousals)  being  properly  understood,  doth  only  sig- 
nifie  Promises  of  future  Marriage,  yet  is  it  not  perpetually 
tied  to  this  only  Sense,  for  sometimes  it  is  stretched  to  the  sig- 
nification of  Love  Gifts  and  Tokens  of  the  Parties  betroathed ; 
as  Bracelets,  Chains,  Jewels,  and  namely  the  Ring;  being 
often  used  for  the  very  Arraho  or  assured  Pledge  of  a  per- 
fect Promise:  Sometimes  it  is  taken  for  the  Portion  of  the 
Goods  which  is  given  for  and  in  consideration  of  the  Mar- 
riage to  be  Solemnized;  and  sometimes  for  the  Feast  or 
Banquet  at  the  Celebration  of  the  Marriage,  and  of  others 
it  is  otherwise  used."  The  canonists,  however,  distinguish 
between  matrimony  and  betrothal,  and  they  "do  also  discern 
betwixt  one  kind  of  Spousals  and  another,  being  the  first 
Inventors  of  the  several  Names  of  Spousals  de  futuro,  and 
Spousals  de  praesenti,  and  yet  nevertheless  oftentimes  they 
make  no  difference,  or  very  little,  betwixt  the  Natures  and 

1  SwiNBDKNE,  Of  Spousals,  15.  This  learned  treatise  was  first  published  in  1686, 
although  written  a  century  before.    See  the  introductory  address  "To  the  Reader." 


Protestant  Conception  op  Marriage       379 

Effects  of  Spousals  de  praesenti  and  of  Matrimony  solem- 
nized and  consummate."^  Such  contracts  are  "as  indis- 
soluble as  perfect  matrimony;"^  and  "as  well  the  Sacred 
Scriptures,  as  the  Civil  and  Ecclesiastical  Laws,  do  usually 
give  to  Women  betroathed  only,  or  affianced,  the  Name  and 
Title  of  Wife,  because  in  truth  the  man  and  woman,  thus 
perfectly  assured,  by  words  of  present  time,  are  Husband 
and  Wife  before  God  and  his  Church."  ^ 

The  old  perplexity  growing  out  of  the  coincidence  of 
illegality  and  validity  in  the  same  contract  still  exists;*  and 
the  conscience  may  still  be  bound  by  secret  marriage,  though 
the  court  may  declare  it  null  and  void.  The  "Law  doth 
forbid  all  Persons  to  make  Secret  Contracts  of  Spousals,  or 
Matrimony;  and  that  justly,  considering  the  manifold  dis- 
commodities depending  thereupon,  namely,  for  that  hereby 
it  cometh  to  pass  oftentimes,  that  the  Parties  secretly  con- 
tracting, are  otherwise  formally  affianced,  or  so  near  in  Blood 
that  they  cannot  be  Married;  or  being  free  from  those  im- 
pediments, yet  do  they  alter  their  purposes,  denying  and 
breaking  their  promises,  whence  Perjuries"  and  "many 
more  intolerable  mischiefs  do  succeed."  ^  Yet  though 
"Secret  Marriages  are  done  indeed  against  the  Law,"  it  is 
held  that  once  contracted  they  cannot  be  dissolved,  because 
public  "solemnities  are  not  of  the  Substance  of  Spousals,  or 
of  Matrimony,  but  consent  only ;  ....  So  that  it  may  be 
justly  inferred,  that  the  only  want  of  Solemnity  doth  not 
hurt  the  Contract."  Moreover,  if  it  be  urged  that  "seeing 
secret  Contracts  cannot  be  proved,  it  is  all  one  in  effect,  as 

1  I6Jd.,  1-3.  2/6id.,  236. 

3Ifeid.,14.  In  Twelfth  Night,  Act  V,  scene  i,  Olivia  calls  Cesario  "husband;" 
and  in  Act  IV,  scene  iii,  referring  to  the  future  nuptials,  speaks  of  keeping  celebra- 
tion "according  to  my  birth."  In  Measure  for  Measure,  Act  I,  scene  iii,  Claudio 
calls  Julietta  his  "wife;"  and  in  Act  IV,  scene  i,  the  duke,  addressing  Mariana  who 
had  been  affianced  to  Angelo,  says,  "  he  is  your  husband  on  a  precontract."  Cf, 
Douce,  Illustrations  of  Shakespeare,  1, 114. 

*  Swinburne,  op.  cit.,  193  ff.  &  Ibid.,  194. 


380  Matrimonial  Institutions 

if  they  were  not,"  it  may  be  answered  that  such  is  truly  the 
case  '-'■Jure  fori,  7ion  jure  poli,  Before  Man,  not  before  God; 
for  the  Church  indeed  doth  not  judge  of  secret  and  hidden 
things,"  but  before  Almighty  God  "bare  Conscience  alone 
is  as  a  thousand  Witnesses ;  Wherefore  I  do  admonish  thee, 
that  hast  in  truth  contracted  secret  Matrimony,  that  thou  do 
not  marry  any  other  Person;  for  doubtless  this  thy  pre- 
tended Marriage,  how  lawful  soever  it  may  seem  in  the  eye 
of  Man,  who  judgeth  only  according  to  the  outward  appear- 
ance, is  nothing  but  meer  Adultery  in  the  infallible  sight  of 
God's  just  Judgment." ' 

Public  as  opposed  to  private  espousals,^  according  to 
Swinburne,  "are  they  which  are  contracted  before  sufficient 
Witnesses,  and  wherein  are  observed  all  other  Solemnities 
requisite  by  the  Ecclesiastical  Law:  For  so  careful  were  the 
ancient  Law-makers  to  avoid  those  mischiefs,  which  com- 
monly attend  upon  secret  and  clandestine  Contracts,  that 
they  would  have  the  same  Solemnities  observed  in  contract- 
ing Spousals,  which  be  requisite  in  contracting  Matrimony."* 
In  fact,  according  to  one  authority,  "public  espousals  were, 
upon  pain  of  excommunication,  to  be  in  an  open  place,  and 
before  diverse  witnesses;"  but  it  does  not  "appear  to  have 
been  necessary  to  the  validity  of  these  contracts,  that  they 
should  be  made  at  church;"^  nor  caur  we  safely  assume  that 

1  Swinburne,  op.  cit.,  194, 195, 196. 

2 "In  an  ancient  manuscript  (No.  1042  in  the  Archiepiscopal  Library  at  Lambeth 
Palace)  the  methods  of  contracting  espousals  are  thus  described :  Contrahunt«  spon- 
salia  iiij  modis — Aliqua  promissione,  aliquot  datis  arris  sponsalitiis  interveniente 
anuli  subarracoe,  aliqua  interveniente  juramto.  Nuda  promissione  cum  dicit 
vir,  Accipiam  te  i  mea  uxorem,  et  ilia  respondet,  Accipia  te  in  men  maritii.  Vel 
alia  verba  equipollencia,  et  ista  st  vera  sponsalia  qndo  sit  per  vba  de  futuro  con- 
tahuntur."— BuEN,  Parish  Registers,  139.  On  sworn  espousals  and  the  other  forms 
see  SwiNBUENE,  op.  cit.,  213  £E.,  193  ff.,  passim. 

3Z6id.,193. 

* BuEN,  Parish  Registers,  139,  citing  Lindwood's  Provinciale,  271.  "  In  an  Alma- 
nack for  1665,  certain  days  (January  2,  4,  etc.)  are  pointed  out  as  'good  to  marry,  or 
contract  a  wife  (for  then  women  will  be  fond  and  loving).'  " — Ibid.,  139  n.  2.  See  also 
Wood,  The  Wedding  Day,  235-60,  for  an  account  of  the  superstitions  and  folklore  on 
this  subject. 


Protestant  Conception  of  Marriage       381 

this  requirement  was  generally  enforced.  During  the  period 
following  the  Reformation  the  celebration  of  the  betrothal 
and  the  nuptials  usually  took  place  at  the  same  time,  on  the 
wedding  day  in  the  body  of  the  church ;  and  the  form  of 
each  is  prescribed  in  the  marriage  rituals.'  The  public 
solemnization  of  espousals  was,  however,  not  entirely  super- 
seded. In  the  seventeenth^  and  eighteenth^  centuries, 
though  passing  out  of  use,  the  custom  was  by  no  means 
extinct,  especially  in  the  case  of  noble  or  royal  persons.  A 
record  of  betrothals  contracted  in  facie  ecclesiae  was  not 
usually  kept;  but  at  least  one  such  entry  has  been  discov- 
ered.    The  register  of  Boughton  Monchelsea,  Kent,  shows 

1  Thus  in  the  rituals  of  Edward  VI.  and  Elizabeth,  when  the  priest  says,  "  Wilt 
thou  have  this  woman  to  thy  wedded  wifel "  or  "  this  man  to  thy  wedded  husbandl " 
we  have  the  case  of  espousals.  Thereafter,  when  each  party  says,  "I,  N.,  take  thee, 
N.,to  my  wedded  wife"  or  "husband,"  we  see  matrimony  contracted,  though  the 
form  is  precisely  that  of  sponsalia  per  verba  de  praesenti.  See  the  Parker  Society 
Liturgical  Services,  Edward  VI.,  128,  129;  Elizabeth,  218,  219.  The  same  forms  are 
retained  in  the  existing  ritual  of  the  English  church:  Bingham,  The  Christian 
Marriage  Ceremony,  163, 164. 

2  In  Nichols's  Progresses  of  King  James  the  First  (London,  1828),  II,  513  ff.,  "  will 
be  found  two  accounts  (one  by  Camden)  of  the  ceremonial  of  the  Aliiancing  of  the 
Princess  Elizabeth  in  1612.  It  took  place  in  the  Banquetting  House  at  Whitehall, 
before  dinner ;  Sir  Thomas  Lake,  as  Secretary  of  State,  read  the  words  from  the  book 
of  Common  Prayer,  in  French,  '  I  Frederick  take  thee  Elizabeth,'  etc.,  after  which 
the  Archbishop  gave  his  Benediction:  'The  God  of  Abraham,  the  God  of  Isaac,  and 
the  God  of  Jacob,  bless  these  Espousals,  and  make  them  prosperous  to  these  King- 
doms, and  to  his  Church.'  This  appears  to  have  been  the  whole  of  the  office,  and  the 
service  was  probably  not  longer  in  ordinary  cases.  In  the  Contract  for  the  Princess's 
marriage,  executed  the  same  day  (Dec.  27),  is  a  clause,  'Qu6d  Matrimonium  verum 
et  legitimum  contrahatur  inter  eos  in  Anglia  ante  initium  mensis  Mali,  et  interim 
Sponsalia  legitima  de  praesenti.''  'It  would  be  no  difficulty,'  remarks  Mr.  Anstis, 
Garter  [Leland's  Collectanea,  V,  329-36],  '  to  show  the  antient  custom  of  such  Espou- 
sals by  the  daughter  of  the  Crown  of  England  as  distinct  acts  from  the  office  of  Mat- 
rimony, and  that  they  frequently  were  performed  some  months  or  years  before  the 
marriage  was  actually  celebrated.'" — Buen,  Parish  Registers,  140  n.  2.  As  shown 
in  the  case  of  Princess  Elizabeth,  even  the  banns  followed  the  public  betrothal: 
Nichols,  II,  524,  525.  In  the  fifth  year  of  Henry  V.,  the  espousals  of  Thomas  Thorp 
and  Katerina  Burgate  were  publicly  celebrated:  Napiee's  Swincombe,  65;  Buen, 
op.  cit.,  144.  "  We  find,  under  date  1476,  that  a  certificate  was  given  by  the  minister 
and  six  parishioners  of  Ufford,  in  Suffolk,  to  the  efifect  that  since  the  death  of  a  cer- 
tain man's  wife  he  had  not  been  '  trowhplyht '  to  any  woman,  and  that  he  might 
therefore  lawfully  take  a  wife." — Wood,  The  Wedding  Day,  212. 

sin  a  breach  of  promise  suit  before  the  common  pleas,  1747,  the  plaintiff  proved 
that  she  had  been  publicly  betrothed,  and  received  £7,000  damage:  Gentleman's 
Magazine,  1747,  p.  293;  also  Gent.  Mag.  Library:  Mariners  and  Customs,  54. 


382  Matrimonial  Institutions 

that  on  the  tenth  day  of  January,  1630,  William  Maddox 
and  Elizabeth  Grimestone  were  affianced  "in  due  form  of 
law ;"  and  in  this  case  the  marriage  was  not  celebrated  until 
three  years  later.'  "The  form  of  betrothing  at  church"  in 
England  "has  not  been  handed  to  us  in  any  of  its  ancient 
ecclesiastical  service  books;"  but  it  "has  been  preserved  in 
a  few  of  the  French  and  Italian  rituals."^  "The  ceremony, 
generally  speaking,  was  performed  by  the  priest  demanding 
of  the  parties  if  they  had  entered  into  a  contract  with  any 
other  person,  or  made  a  vow  of  chastity  or  religion ;  whether 
they  had  acted  for  each  other,  or  for  any  child  they  might 
have  had,  in  the  capacity  of  godfather  or  godmother."  Then, 
if  the  contract  were  in  the  form  of  sponsalia  jurata  or  sworn 
espousals,  the  "oath  was  administered.  'You  swear  by  God 
and  his  holy  Saints  herein  and  by  all  the  Saints  of  Paradise, 
that  you  will  take  this  woman  whose  name  is  N.,  to  wife 
within  forty  days,  if  holy  church  will  permit.'  The  priest 
then  joined  their  hands,  and  said — 'And  thus  you  affiance 
yourselves;'  to  which  the  parties  answered, — 'Yes,  Sir.' 
They  then  received  a  suitable  exhortation  on  the  nature  and 
design  of  marriage,  and  an  injunction  to  live  piously  and 
chastily  until  that  event  should  take  place.  They  were  not 
permitted,  at  least  by  the  church,  to  reside  in  the  same 
house,  but  were  nevertheless  regarded  as  man  and  wife 
independently  of  the   usual  privileges."  ^     Later  in  France 

IBUEN,  op.  cit..  Hi.  The  author  has  evidently  transposed  the  dates.  "The 
Eastern  Emperor  Leo,  surnamed  Philosophus  (in  order  to  prevent  the  mischiefs 
arising  from  Espousals  to  be  concluded  by  marriage  at  a  distant  period)  commanded 
that  the  Espousals  and  Weddings  should  be  performed  both  upon  one  day.  Alexius 
Comnenus  endeavoured  to  restore  the  old  custom."— Alex.  Com.  Novel,  de  Spans.,  1, 2. : 
BxJEN,  loc.  cit.,  n.  1. 

2DOUCE,  Illustrations  of  Shakespeare  (London,  1807),  I,  108.  Douce  discusses 
the  more  interesting  references  to  the  betrothal  in  Shakespeare's  plays :  ibid.,  107-14, 
403.  Cf.  also  BUEN,  op.  cit.,  140,  143.  On  the  mediaeval  English  practice  of  spousals, 
private  and  in  church,  see  Palmee,  Origines  liturgicae,  II,  211,  212 ;  and  in  general 
Jeatfeeson,  Brides  and  Bridals,  I,  60-87 ;  Beand,  Popular  Antiquities,  II,  87  £f. 

3 Douce,  op.  cit.,  I,  113,  114.  See  also  Wood,  The  Wedding  Day,  211,  212;  and 
compare  the  Greek  betrothal  ritual  in  Buen,  op.  cit.,  141, 142,  taken  from  the  Eucho- 
logion  sive  rituale  graecoruni,  380.  On  sponsalia  Jurata  see  Swinbuene,  Of  Spousals, 
213-21;  Kling,  Tr.  mat.  causarum,  2,  3;  Beust,  Tr.  despons.  et  mat.,  219  ff. 


Protestant  Conception  of  Marriage      383 

espousals  in  church  were  often  prohibited,  "because  instances 
frequently  occurred  when  the  parties,  relying  on  the  testi- 
mony of  the  priest,  scrupled  not  to  live  together  as  man  and 

wife Excesses  were  likewise  often  committed  by  the 

celebration  of  Espousals  in  taverns  and  ale-houses,  and  some 
of  the  synodal  decrees  expressly  injoin  that  the  parties  shall 
not  get  drunk  on  these  occasions." ' 

Valid  betrothals,  like  valid  marriages,  may  be  celebrated 
by  signs  as  well  as  words.  This  is  true,  says  Swinburne, 
notwithstanding  *'  a  ready  text,  extant  in  the  bowels  of  the 
law,"  much  relied  upon  by  diverse  writers,  to  the  effect  that 
words  expressive  of  consent  are  essential.^  "And  forasmuch 
as  Subarration,  that  is  the  giving  and  receiving  of  a  Ring, 
is  a  Sign  of  all  others,  most  usual  in  Spousals  and  Matri- 
monial Contracts,  I  think  it  requisite  to  speak  of  it,  before 
all  other  Signs ;  the  rather  because  the  Writers  upon  this 
Sign  have  diligently  described  unto  us,  what  Persons  did 
first  devise  the  same,  and  to  what  end;  and  what  was  the 
matter,  and  what  the  form  thereof,  on  which  Finger  it  ought 
to  be  worn,  and  what  is  the  Signification  of  each  of  those 
Circumstances,  with  divers  other  Observations  which  I 
will  briefly  run  over.  The  first  Inventer  of  the  Ring  (as 
is  reported)  was  one  Prometheus;  The  Workman  which 
made  it  was  Tubal- Cain,  of  whom  there  is  mention  in  the 
fourth  of  Genesis,  that  he  wrought  cunningly  in  every  Craft 
of  Brass  and  Iron:  And  Tubal-Cain  by  the  Counsel  of  our 
first  Parent  Adam  (as  my  Author  telleth  me),  gave  it  unto 
his  Son  to  this  end,  that  therewith  he  should  espouse  a 
Wife,  like  as  Abraham  delivered  unto  his  Servant  Bracelets 
and  Ear-Rings  of  Gold,  which  he  gave  to  Rebecca,  when  he 
chose  her  to  be  Isaacks  Wife But  the  first  Ring 

1  Douce,  op.  cit.,  I,  112,  113.  Compare  the  interesting  passage  in  Bullinger, 
Per  christUch  Ehestand,  Ivs.  60  ff. 

2  Swinburne,  Of  Sp&usals,  203  ff.  Whether  the  ring  alone,  without  the  usual 
words  of  assent,  is  a  sufficient  sign  of  contracting  espousals  or  marriage,  depends 
on  its  presentation  in  solemn  form  or  upon  local  or  national  custom  :  ibid.,  209-12. 


384  Matrimonial  Institutions 

was  not  of  Gold,  but  of  Iron,  adorned  with  an  Adamant, 
the  Metal  hard  and  durable,  signifying  the  continuance  and 
perpetuity  of  the  Contract ;  the  vertuous  Adamant  drawing 
the  Iron  unto  it,  signifying  the  perfect  unity  and  indis- 
soluble Conjunction  of  their  minds,  in  true  and  faithful 
love;  Howbeit  it  skilleth  not  at  this  day,  what  Metal  the 
Ring  be;  The  form  of  the  King  being  circular,  that  is, 
round,  and  without  end,  importeth  thus  much,  that  their 
mutual  love  and  hearty  affection  should  roundly  flow  from 
the  one  to  the  other,  as  in  a  Circle,  and  that  continually, 
and  for  ever ;  The  Finger  on  which  this  Ring  is  to  be  worn 
is  the  fourth  Finger  of  the  left  hand,  next  unto  the  little 
Finger ;  because  by  the  received  Opinion  of  the  Learned  and 
Experienced  in  Ripping  up,  and  anatomizing  Mens  Bodies, 
there  is  a  Vein  of  Blood  which  passeth  from  that  fourth 
Finger  unto  the  Heart,  called  Vena  amoris,  Love's  Vein. 
And  so  the  wearing  of  the  Ring  on  that  Finger  signifieth, 
that  the  love  should  not  be  vain  or  fained,  but  that  as  they 
did  give  their  Hands  each  to  other,  so  likewise  they  should 
give  their  Hearts  also,  whereunto  that  Vein  is  extended. 
Furthermore  I  do  observe,  that  in  former  Ages  it  was  not 
tolerated  to  single  or  unmarried  Persons  to  wear  Rings, 
unless  they  were  Judges,  Doctors,  or  Senators,  or  such  like 
honourable  Persons:  So  that  being  destitute  of  such  Dignity, 
it  was  a  note  of  Vanity,  Lasciviousness,  and  Pride  for  them 
to  presume  to  wear  a  Ring,  whereby  we  may  collect  how 
greatly  they  did  honour  and  reverence  the  Sacred  Estate  of 
Wedlock  in  times  past,  in  permitting  the  Parties  affianced 
to  be  adorned  with  the  honourable  Ornament  of  the  Ring: 
As  also  the  Vanity,  Lasciviousness,  and  intolerable  Pride  of 
these  our  days,  wherein  every  skipping  Jack  and  every 
flirting  Jill,  must  not  only  be  ring'd  (forsooth)  very  daintily, 
but  must  have  some  special  Jewel  or  Favour  besides,  as 
though  they  were  descended  of  some  noble  House  or  Parent- 


Protestant  Conception  of  Marriage       385 

age,  when  as  all  their  Houses  and  whole  Patrimony  is 
not  worth  the  Ninth  part  of  a  Noble;  or  else,  as  if  they 
were  betrothed  or  assured  in  the  holy  Band  of  Wedlock, 
when  as  indeed,  there  is  no  manner  of  Contract  betwixt 
them,  unless  peradventure  it  be  such  a  Contract  as  Judah 
made  with  Thamar,  ....  which  bargain  he  concluded  by 
delivering  her  a  Ring."  ' 

This  curious  passage  is  here  quoted  at  length,  not  because 
it  has  historical  value,  but  because  the  author  has  condensed 
therein  the  symbolism,  conceits,  and  folklore  connected  with 
the  betrothal  ring  as  these  are  found  in  the  writings  of  the 
canonists,  whom  he  carefully  and  minutely  cites  in  the 
margin.* 

Before  the  act  of  1753  persons  contracting  espousals  de 
praesenti  might  be  compelled  to  celebrate  matrimony  in 
facie  ecclesiae,  under  penalty  for  refusal  of  excommunica- 
tion by  the  spiritual  and  imprisonment  by  the  secular  power;* 
but  in  case  of  a  mere  contract  de  fiituro,  if  either  party 
refused  to  keep  his  engagement,  he  was  rather  to  be  "  ad- 
monished than  compelled."     The  "judge  is  not  to  proceed 

1  Swinburne,  op.  cit.,  201-9.  The  symbolism  of  the  ring  is  explained  in  the  same 
spirit  by  Martin  Bucer,  Script.  Anglic.  (Basel,  1577),  Censur.  in  ordinal,  eccles., 
cap.  XX,  pp.  488,  489 :  Whitgift,  "  Defence  of  the  Answer,"  Works,  III,  353  n.  11.  (Cf. 
chap,  xi,  below,  where  this  passage  is  qaoted.)  The  early  rituals,  as  we  have  seen 
(above,  chap,  vii,  sec.  1),  quote  the  Decree  of  Gratian  as  authority  for  the  "vein 
extending  to  the  heart." 

2  On  the  archaeology  of  the  ring  see  further  Saxse,  Arcana  annuli  pronubii, 
68  fF. ;  Wood,  The  Wedding  Day,  217-34 ;  Wheatley,  Illtistrations  of  the  Common 
Prayer,  437-40;  Brand,  Popular  Antiquities,  II,  102  ff. ;  Douce,  Illvstrations  of 
Shakespeare,  I,  109  ff . ;  Jeaffreson,  Brides  and  Bridals,  I,  1.38-66;  Gentleman's 
Magazine,  1795,  pp.  727,  728,  987 ;  also  Gent.  Mag.  Library :  Manners  and  Customs, 
54-57;  Notes  and  Queries,  3d  series,  VII,  12,  307,  350,  387  (metal  of  the  ring);  5th 
series,  XII,  407,  474,  514.  The  fourth  finger  in  connection  with  the  vein  to  the  heart  is 
mentioned  by  Aulu3  Gellius,  lib.  x,  c.  10;  also  by  Macrobius,  Saturnal.,  lib.  vii, 
c.  13,  who  "  quotes  the  opinion  of  Ateius  Capito,  that  the  right  hand  was  exempt 
from  this  oflBce  because  it  was  much  more  useful  than  the  left  hand,  and  therefore 
the  precious  stones  of  the  rings  were  liable  to  be  broken ;  and  that  the  finger  of  the 
left  hand  was  selected  which  was  the  least  used." — Gent.  Mag.  Lib.,  Inc.  cit.,  54. 
The  medisBval  marriage  ceremony  is  described  by  Chaucer,  MerchanVs  Tale,  11. 
450-509  (ed.  Morris,  London,  1891),  332-333. 

3  (y.  2  and  3  Ed.  VI.,  c.  23,  cited  above ;  and  Hooper,  Later  Writings,  II,  138. 


386  Matrimonial  Institutions 

to  the  Significavit,  but  rather  to  absolve  that  cursed  Party 
which  contemneth  the  Censures  of  the  Church,  albeit  there 
be  no  Cause  of  favour,  but  fear  of  further  mischief,  by  com- 
pelling them  to  go  together,  which  hate  one  another.  Yet 
is  not  this  froward  Party  thus  to  be  dismissed,  but  is  to 
suffer  pennance"  for  breach  of  faith.^ 

II.       AS    TO    THE    NATUEE    OF    MARRIAGE 

In  its  practical  results,  therefore,  the  Reformation  had 
little  effect  on  law  and  theory  as  to  the  form  of  wedlock. 
For  England  it  had  no  significance  at  all ;  and  the  same  is 
true  of  Germany,  except  so  far  as  Luther's  view  of  the 
sponsalia  may  have  found  some  expression  in  legislation 
and  judicial  decree.  With  respect  to  the  nature  of  marriage 
the  case  is  very  different.  The  dogma  of  its  sacramental 
character  was  abandoned  throughout  the  Protestant  world.^ 
In  its  place  a  new  conception  arose;  and  it  is  very  instruc- 
tive to  trace  the  process  of  change  in  the  mind  of  Luther 
himself.^  As  late  as  1519  he  declares  that  "the  marriage 
state  is  a  sacrament,"  an  outward  "symbol  of /the  greatest, 
holiest,  noblest,  most  worthy  thing  that  has  ever  existed  or 
can  exist:  the  union  of  the  divine  and  human  natures  in 
Christ;"*  and  this  symbol  he  explains  entirely  in  harmony 
with  the  "dogmatism  of  the  Middle  Ages,  notably  that  of 
St.  Thomas  Aquinas,  who  sought  the  motive  of  the  marriage 
sacrament  in  legalization  of  the  sensual  impulse."  ^  In  the 
very  next  year,  however,  and  again  in  1539,  he  expresses 

1  Swinburne,  op.  cit.,  231, 232 ;  Burn,  op.  cit.,  138, 139, 140. 

2  In  general  on  the  Protestant  theory  of  marriage  see  Friedbeeg,  Geschichte 
der  Civilehe,  6  ff. ;  idem,  Eheschliessung,  153-98;  Eichter,  Lehrbuch,  1050  £F. 

3  The  selections  from  Luther's  writings  relating  to  the  nature  of  marriage  and 
the  question  of  its  sacramental  character  take  up  the  first  215  pages  of  Steampff's 
Dr.  Martin  Luther :  Ueber  die  Ehe. 

iLuTHEE,  "Vom  ehelichen  Stande, " -Bwcfter  und  Sc/ir^/ten  (Jena,  1564),  I,  fol. 
1706 ;  also  in  Stbampff,  205. 

5FEIEDBEKG,  EhesShUesswig,  157. 


Protestant  Conception  of  Marriage       387 

himself  decisively  against  the  ancient  Catholic  doctrine.'  A 
Nevertheless  in  his  various  attempts  to  define  the  niatri-  1 
monial  state  an  apparent  contradiction  is  presented  which  is 
hard  to  reconcile,  and  which  is  of  great  significance  in  the 
long  struggle  for  the  instituting  of  civil  marriage.  On  the 
one  hand,  though  not  technically  a  sacrament,  marriage  is 
described  as  holy,  a  "most  spiritual"  status,  "ordained  and 
founded"  by  God  himself.  It  is  the  source  of  domestic  and 
public  government,  the  foundation  of  human  society,  which 
without  it  would  "fall  to  pieces."^  So  holy  is  the  state  of 
matrimony,  in  Luther's  conception,  that  he  must  perforce 
still  use  the  term  "sacrament"  to  convey  his  meaning.'  On 
the  other  hand,  his  writings  contain  passages  of  a  very 
different  tenor.  "So  many  lands,  so  many  customs,  runs 
the  common  saying.  Therefore  since  weddings  and  matri- 
mony are  a  temporal  business,  it  becomes  us  clerks  and 
servants  of  the  church  to  order  or  rule  nothing  therein,  but 
to  leave  to  each  city  and  state  its  own  usages  and  customs  in 
this  regard."*  Elsewhere,  in  words  which  anticipate  the 
sentiment  of  Milton  by  a  hundred  years,  he  insists  that 
"matrimonial  questions    do  not   touch  the  conscience,   but 

1  LuTHEE,  Von  der  Babylonischen  gefencknuss  der  Kirchen ;  idem.  Von  den  Con- 
ciliis  und  Kirchen  (1539) :  quoted  by  Feiedbeeg,  op,  cit.,  157,  158,  notes.  These 
passages  and  others  in  Steampff,  205  ff.,  213  ff. 

2  LcTHEE,  "  Das  siebend  Capitel  St.  Paul  zu  den  Corinthern  ansgelegt ''  (1523), 
BUcher  und  Schriften  (Jena,  1555),  II,  fol.  297;  idem,  "Auslegung  des  ersten  Buch 
Moses"  (1536-45),  ibid.  (Jena,  1556),  IV;  or  Steampff,  163-203,  See  the  passage  quoted 
by  Feiedbeeg,  Eheschliessung,  158.  For  similar  expressions  compare  Tischreden, 
foil.  350,  352,  etc. 

3  LuTBTEE,  "Auslegung  des  ersten  Buch  Moses  "  (1536-45),  loc.  cit.,  fol.  145a.  Cf. 
Feiedbeeg,  op.  cit.,  157. 

*"So  manchs  Land,  so  manch  Sitte,  sagt  das  gemeine  SprQchwort;  demnach, 
weil  die  Hochzeit  und  Ehestand  ein  weltlich  Geschaft  ist,  gebuhrt  uns  Goistlichen 
oder  Kirchendienern  nichts  darin  zu  ordenen  oder  regieren,  sondern  lassen  einer 
iglichen  Stadt  und  Land  hierin  ihren  Brauch  und  Gewohnheit,  wio  sio  gehen." — 
LuTHEE,  "Der  kleiue  Katechismus  mit  dem  Traubuchlein,  Vorredo "  (1529),  in 
Steampff,  340,  341,  422.  Again  Luthee  says :  "Es  kan  ja  niemand  leugnen,  das  die 
Ehe  ein  eusserlich  weltlich  ding  ist,  wie  Kleider  und  Speise,  Haus  und  Hofe,  welt- 
licher  Oberkeit  unterworffen."— "  Von  Ehesachen,"  BUcher  und  Schriften  (1561),  V, 
fol.  237. 


388  Matrimonial  Institutions 

belong  to  the  temporal  power,"  warning  the  clergy  not  to 
meddle  with  them  unless  commanded  by  that  authority.' 
Marriage,  he  emphatically  declares,  is  a  "temporal,  worldly 
thing"  which  "does  not  concern  the  church."^ 

Thus  Luther  provided  the  arsenal  from  which  both  the 
friends  and  the  foes  of  civil  marriage  drew  their  weapons. 
His  name,  says  Friedberg,  became  the  "battle-cry,"  the 
"shield  and  mantle,"  of  the  contending  factions;  and  while 
urging  that  Luther  must  be  regarded  as  the  champion  of 
marriage  as  a  "worldly  thing,"  the  same  writer  points  out 
the  two  powerful  motives  which  may  in  large  measure 
account  for  this  apparent  contradiction.*  First,  the  evils 
growing  out  of  the  ecclesiastical  jurisdiction  in  matrimonial 
causes  were  becoming  an  intolerable  burden  to  Christendom ; 
and  only  by  denying  the  sacramental  nature  of  marriage 
could  the  way  be  cleared  for  a  transfer  of  that  jurisdiction 
to  the  secular  courts.  Secondly,  the  abuses  connected  with 
sacerdotal  celibacy  were  scarcely  less  threatening.  The 
licentiousness  of  the  clergy  was  "beyond  belief."  Many 
"bishops  were  at  last  content  to  convert  the  vows  of  celibacy 
into  sources  of  revenue,  suffering  the  clergy  to  live  in  con- 
cubinage   in    return    for    a    yearly    tax;*    and  yet  the   "ill 

lEhesachen  gehen  die  Gewissen  nicht  an,  sondern  gehOren  fflr  die  weltliche 
Oberkeit;  darumb  schlage  sich  keiner  drein,  die  Oberkeit  befehl  es  denn,  sprach 
D.  M.  L.  zu  den  Predigern." — Tischreden,  fol.  369.  In  another  passage,  speaking  of 
the  breach  of  the  marriage  vow  and  divorce,  he  says :  "  Solche  falle  gehOren  eigentlich 
der  Oberkeit;  denn  die  Ehe  ist  ein  weltlich  ding,  mit  alien  iren  umbstenden;  gehet 
die  Kirch  nichts  an,  denn  so  viel  es  die  Gewissen  belanget." — Ibid.,  fol.  368.  Cf. 
Friedbeeg,  Eheschliessung,  160. 

2  Luther,  Tischreden,  fol.  369.  See  the  passages  relating  to  the  "  weltliche 
Regiment  in  Ehesachen,"  in  Steampff,  411-30,  with  the  author's  critical  essay. 

3  Feiedbeeg,  op.  cit.,  160-75. 

*Ibid.,lQQ.  See  Tyndale,  Answer  to  More,  29  n.  4:  "More  saith  in  his  Conf. 
(p.  ccliiii),  'Syth  the  marriage  (of  a  priest)  is  no  marriage,  it  is  but  whoredom  itself. 
And  I  am  sure  also  that  it  deflleth  the  priest  more  than  double  and  treble  whore- 
dom.' "  Tyndale  accuses  the  pope  of  opposing  God's  law  in  denying  marriage  to 
priests  and  by  dispensations  licensing  concubinage  for  money,  "as  through  Dutch- 
land  every  priest,  paying  a  gildren  unto  the  archdeacon,  shall  freely  and  quietly 
have  his  whore  .  .  .  ,  as  they  do  in  Wales,  in  Ireland,  Scotland,  France,  and 
Spain;"  and  in  "England, thereto,  they  be  not  few  which  have"  such  licenses.  When 


Protestant  Conception  of  Marriage       389 

preserved  chastity  of  the  priesthood  was  interpenetrated 
then  as  before  by  a  profound  contempt  for  the  marriage 
state."'  Hence  Luther  proclaimed  the  natural  and  scriptu- 
ral right  of  priests  to  marry;  and  rejecting  the  low  ascetic 
ideal  he  laid  stress  on  the  purity  and  holiness  of  marriage 
as  an  institution  ordained  of  heaven.^  But,  after  all,  this 
doctrine  is  not  so  entirely  out  of  harmony  with  the  view  that 
matrimony  is  a  "worldly  thing;"  for  with  the  Reformation 
a  new  conception  of  the  temporal  power  arose.  During  the 
Middle  Ages  the  contrast  was  not  between  church  and  state, 
as  the  latter  is  now  understood;  but  between  the  "unholy 
world  and  the  holy  church."  Hence  the  state,  because  it 
was  comprehended  under  the  conception  of  the  world,  "par- 
took of  its  unholiness.  The  Reformation  formulated  the 
antithesis  differently.  It  released  the  state  from  its  shell 
of  'worldliness,'  ascribed  to  it  ethical  tendencies,  and  made 
it  the  bearer  of  morality.  Formerly  the  state  was  unholy, 
because  it  belonged  to  the  world;  now  the  world  became 
ethical,  because  it  fell  within  the  sphere  of  the  state,  for  the 
state  itself  was  moral."  ^  Thus,  in  the  sixteenth  century,  the 
conception  of  the  "Christian  state"  and  of  the  "Christian 

the  parishes  go  to  law  to  make  them  put  away  their  concubines,  "the  bishop's 
officers  mock  them,  poll  them,  and  make  them  spend  their  thrifts  and  the  priests 
keep  their  whores  still." — Ibid.,  40,  41  n.  4,  and  the  documents  there  quoted.  Cf. 
CovEKDALE,  Bemains,  484 ;  Tyndale,  Doc.  Treatise,  232 ;  Hutchinson,  Works,  202 ; 
and  especially  Jewell's  controversy  with  Harding  in  "  Defence  of  the  Apology," 
Works,  IV,  629  ff.,  640  £f.  On  the  prevalence  of  concubinage  in  England  during  the 
Middle  Ages  see  Stubbs,  Const.  Hist.,  Ill,  372;  Makowee,  Const.  Hist.  Eng.  Church, 
217-20,  notes,  who  declares  that  from  the  close  of  the  twelfth  century  onward  a 
priest  was  punished  less  severely  for  fornication  than  for  marrying.  "  Loss  of  ofiice 
is  the  penalty  only  for  a  breach  of  the  prohibition  to  marry,"  not  for  fornication, 
unless  very  notorious:  op.  cit,,  217.  Compare  Johnson,  Ca?ioji.s,  II,  26,  33,  40,  80,  81, 
114,132;  and  2  and  3  Ed.  VI. :  Gee  and  Haedy,  Documents,  307,  for  complaints  of 
this  evil.    See  the  literature  on  the  evils  of  celibacy  cited  in  chap.  viii. 

1  Feiedbeeg,  Eheschliessung,  166.  For  Germany  compare  Kawekac,  Die 
Reformation  und  die  Ehe,  1-40. 

2LuTHEE,  "  Bedenken  und  Unterricht  von  den  KlOstern"  (1522),  Kleinere 
Schri/ten,  II,  45-73 ;  idem.  An  die  herrn  deutschs  Ordens  (1523) ;  and  Bugenhagen, 
De  conjugio  episcoporum  et  diaconorum  (1525), 

3 Feiedbeeg,  op.  cit.,  175. 


390  Matrimonial  Institutions 

prince,"  to  which  Erasmus  gave  such  fine  expression,  became 
thoroughly  established.'  Theoretically  church  and  state 
were  kept  apart;  but  practically  they  were  united;  for  the 
idea  of  a  "state  church"  no  longer  gave  a  shock  to  the 
religious  sense.  Accordingly  the  king  as  the  Lord's 
anointed  became  the  defender  of  the  faith  and  the  source 
of  ecclesiastical  authority. 

With  Luther's  teachings  regarding  the  nature  of  marriage 
the  German  Protestant  leaders  were  mainly  agreed.^  In  his 
reaction  against  celibacy  and  asceticism,  however,  he  went 
to  an  extreme  where  all  could  not  follow  him.  There  were 
doubtless  many  persons  attached  to  the  new  doctrines  who 
were  inclined  to  tolerate  or  sanction  concubinage  and  even 
polygamy.'  But  the  "double  marriage"  of  the  landgrave 
of  Hesse,  which  was  sanctioned  by  Luther,  Melanchthon, 
and  Bucer,  created  a  scandal  for  which  the  majority  were 
not  willing  to  be  held  responsible.  Indeed,  from  the  tone 
of  the  decision  of  Luther  and  his  colleagues  it  seems  clear 
that  they  were  conscious  of  treading  on  dangerous  ground.* 
Regarding  another  important  point  the  Reformers  were  not 
entirely  in  harmony.  The  abuses  arising  in  the  complex 
law  relating  to  forbidden  degrees  and  the  other  canonical 
impediments,  it  was  felt,  ought  to  be  remedied.  But  there 
was  much  divergence  of  opinion  as  to  the  "exact  content  of 
the  reform  needed  and  even  as  to  the  principle  which  ought 

1  Feiedbeeg,  Eheschhessung,  173, 175.  He  finds  traces  of  the  idea  of  a  Christian 
state  in  the  writings  of  Huss  and  Tauler :  ibid.,  173  n.  8. 

2  For  example  see  Bullingee,  Der  christ.  Ehestand,  Ivs.  3  ff, ;  MEiiANCHTHON, 
"  Da  conjugio,"  Opera,  1,  pars  ii,  221,  222;  Mentzee,  De  conjugio  tr.,  1  S. ;  Foestee, 
De  nuptiis,  1  ff . ;  Saeceeius,  Vom  heil.  Ehestande,  foil.  1-12 ;  idem.  Corpus  juris  mat., 
foil.  I'-ll.  Compare  the  sentiments  of  Eeasmus,  De  matrimonio  christiano,  2  S., 
passim, 

3  RiCHTEE,  Beitrdge  zur  Gesch.  des  Ehescheidungsrechts,  46  ff. ;  Foestee,  De 
nuptiis,  44. 

*See  the  "Bedencken"  and  the  other  documents  in  the  case  in  Aecuaeius, 
Betrachtung,  210  ff.,  220  ff.  Consult  Gottlieb  Waemund  (Johann  LyseeI),  Geivis- 
senhaffte  Gedancken  vom  Ehestande,  first  six  pages ;  and  the  literature  mentioned  in 
Bibliographical  Note  IX. 


Protestant  Conception  of  Maeriage       391 

to  be  followed.  Should  simply  a  return  be  made  to  the 
Mosaic  or  to  the  Roman  law?"  Or  should  the  canon  law  be 
retained  with  certain  modifications?'  All  were  agreed  that 
the  hindrance  of  spiritual  kinship  must  be  absolutely 
adandoned;  and  there  was  a  tendency  to  allow  intermar- 
riage within  the  third  degree  of  affinity  and  consanguinity.^ 
But  there  was  much  diversity  in  legislation  and  judicial 
practice,  the  rules  of  the  Levitical  code  being  followed  with 
varied  interpretations.^  By  the  old  Protestant  law  and 
doctrine,  as  well  as  by  the  rule  of  the  mother  church, 
dispariias  cultiis,  or  difference  of  religious  faith,  was 
regarded  as  an  impediment  to  wedlock.  Marriages  between 
Christians  and  non-Christians  were  positively  forbidden.* 
In  like  spirit,  unions  between  adherents  of  different  Chris- 
tian   confessions    were   either   entirely    prohibited   or   else 

iScHEUEL,  "Zur  Lehre  von  dem  Ehehindernisse  der  Verwandtschaft,"  ZKR., 
XVI,  1-34,  giving  a  clear  account  of  the  Protestant  doctrine  and  its  relation  to  the 
canon  law.    Compare  his  Das  gemeine  deuische  Eherecht,  183  ff.,  195  ff . 

For  Luther's  views  on  impediments,  including  the  forbidden  degrees,  consult 
the  collection  of  writings  in  Steampff,  215  ff.,  228  ff. ;  and  compare  Erasmus,  De  mat. 
Christ.,  94  ff.,  100  ff. ;  Melanchthon,  "  De  conjugio,"  Opera,  I,  pars  ii,  223  ff. ;  idem, 
"De  arbore  consang.,"  in  Saeceeius,  Vom  heil.  Eliestande,  foil.  12  ff. ;  Bullingee, 
Der  Christ.  Ehestand,  Ivs.  16  ff. ;  or  the  same  in  Saeceeius,  op.  cit.,  foil.  44  ff.  ; 
ScHNEiDEWiN,  De  nuptUs,  tit.  x,  "  De  arbore  afiinitas,"  sees.  1-23;  Beust,  Tr.de 
spons.  et  m,at.,  23,  24,  225  ff. ;  Kling,  Tr.  mat.  caus.,  43-58;  Bidembach,  De  causis  mat. 
tr.,  37  ff. ;  Mentzee,  De  conjugio  tr.,  60  ff.,  70  ff. ;  Beouwee,  De  jure  connub.,  435  ff., 
444  ff.,  461  ff. 

2  See  the  Dresden  resolutions  of  1653  in  Schleusnee,  "Zu  den  Anfangen  protest. 
Eherechts,"  ZKG.,YI,  411,  412;  also  in  Mejee,  "Zur  Gesch.  des  alt.  protest.  Ehe- 
rechts,"  ZKR.,  XVI,  36,  37;  idem,  Zum  Kirchenrecht,  147-71. 

sRichtee,  Lehrbuch,  1089;  Feiedberg,  Lehrbuch,  296-336;  idevi,  "Beitrage  zur 
Geschichte  des  brand.-preuss.  Eherechts,"  ZKR.,  VI,  90-135,  particularly  129  ff. ; 
idem,  "Ans  der  protest.  Eherechtspflege  des  16.  Jahrh.,"  ibid.,  TV,  304-19,  discussing 
the  case  of  Zaschwitz  and  communicating  important  documents  of  Melanchthon 
which  disclose  his  liberal  views  regarding  affinity.  The  church  ordinances  regarding 
impediments  are  analyzed  by  Goeschbn,  Doctrina  de  mat.,  9  ff.,  30  ff.  Compare  his 
article  "  Ehe,"  in  Heezog's  Encyclopaedie,  III,  674-80. 

*  Luther,  however,  was  more  tolerant,  refusing  to  accept  difference  of  religion 
as  a  proper  hindrance  to  marriage :  see  the  passages  collected  by  Stkampff,  282,  283. 
On  the  other  hand,  Melanchthon,  "De  conjugio,"  Opera,  I,  pars  ii,  235,  236,  dis- 
approved of  such  unions.  Compare  Erasmus,  De  mat.  christ.,  108, 109.  The  law  was 
gradually  relaxed,  especially  in  favor  of  intermarriage  with  Jews,  and  it  is  now 
abrogated  under  the  imperial  legislation:  Ricuter,  Lehrbicch,  1110, 1111 ;  Scheuel, 
Das  gemeine  deutsche  Eherecht,  218,  219;  idem,  Kirchenrecht.  Abhandlu7igen,  521; 
Feiedberg  and  Wasseeschleben,  "Zwei  Gutachten,"  ZKG.,  IX. 


392  Matrimonial  Institutions 

severely  discouraged/  Such  intolerance  was  sure  to  pro- 
duce the  natural  bitter  fruit ;  and  the  controversy  over  these 
"mixed  marriages"  has  perpetuated  itself  to  our  own  times.^ 
In  England  as  well  as  in  Germany  the  law  and  judicature 
of  the  church  rested  on  the  sanction  of  the  state.^  This  is 
the  fundamental  fact  in  the  history  of  the  English  revolt 
from  Rome.  But,  owing  to  the  peculiar  circumstances  of 
that  revolt,  the  investiture  of  the  king  with  the  headship  of 
the  church  was  very  unfortunate.  Henry  VIII.  clung  to 
the  old  doctrines.  A  stumbling-block  was  thus  placed  in 
the  way  of  intellectual  and  spiritual  progress  which  in  the 
end  cost  a  second  revolution  to  remove.  The  effects  of  this 
unlucky  settlement  are  plainly  discernible  in  the  ecclesias- 
tical conception  of  marriage.  If  the  teachings  of  the  fathers 
of  the  English  church*  be  examined  for  the  period  between 

iThus,  according  to  Des  Herzogthums  Wirtemberg  erneuerte  Ehe-  und  Ehe- 
GencAfs-OrdnMn^  (1687),  96-99,  mixed  marriages  are  not  absolutely  prohibited;  but 
the  parties  are  to  be  "dehortirt;"  the  peril  to  their  souls  is  to  be  pointed  out ;  a 
special  order  procured  for  the  nuptials;  while  the  evangelical  party  is  to  be 
admonished  to  have  the  marriage  celebrated  in  some  evangelical  place  abroad,  to 
frequent  the  orthodox  services  and  sacraments,  and  to  have  the  future  children 
brought  up  in  the  orthodox  religion.        ' 

2ScHEURL,  Das  gemeine  deutsche  Eherecht,  219-21;  Richtee,  Lehrbuch,  1201  ff., 
1207  ff.,  especially  nn.  28,  30,  32,  45;  Schott,  Einleit.  in  das  Eherecht,  123, 124. 

In  general  for  the  controversy  regarding  mixed  marriages  see  the  literature 
described  in  Bibliographical  Note  IX, 

3  In  Germany,  at  the  Reformation,  matrimonial  jurisdiction  fell  partly  into  the 
hands  of  the  parish  clergy,  partly  into  the  hands  of  secular  judges.  The  former  in 
their  decisions  followed  mainly  the  Roman  law  and  the  scriptural  teachings  under 
the  guidance  of  Luther  and  other  great  theologians;  while  the  lay  judges  were 
guided  by  the  corpus  juris  canonici.  Confusion  arose ;  the  law  was  carelessly  and 
ignorantly  administered ;  and  so  a  demand  was  made  for  special  courts  for  matri- 
monial questions.  This  resulted,  generally,  in  the  relegation  of  matrimonial  causes 
to  the  newly  created  consistories,  composed  partly  of  spiritual  and  partly  of  tem- 
poral judges,  who  in  practice  followed  the  principles  of  the  canon  law  and  con- 
stituted in  fact  ecclesiastical  courts.  Compare  the  very  interesting  decisions  of  the 
consistory  court  of  Wittenberg,  already  quoted,  beginning  soon  after  its  formation, 
in  ScHLEUSNEE,  Anfdnge  des  prot.  Eherechts,  130-62.  It  can  scarcely  be  said  that  the 
evils  of  matrimonial  law  and  administration  in  Germany  were  very  much  lessened  as 
a  result  of  the  Reformation  during  the  first  two  centuries  after  Luther.  See  the  min- 
ute investigation  of  Fkiedbeeg,  Eheschliessung,  177  ff.,  186  ff. ;  and  his  Geschichte  der 
Civilehe.    Compare  the  discussion  of  the  rise  of  matrimonial  jurisdiction  in  chap.  xi. 

*  See  the  Works  of  the  Fathers  and  Early  Writers  of  the  Reformed  English  Church, 
published  by  the  Parker  Society  in  a  long  series  of  volumes.  There  is  an  excellent 
index,  six  columns  of  which  are  devoted  to  "  marriage." 


Protestant  Conception  of  Marriage      393 

the  death  of  Wolsey  and  the  death  of  Elizabeth,  it  will  be 
found  that  they  are  less  bold,  showing  more  of  the  spirit  of 
compromise  with  the  medisBval  doctrines,  than  are  those  of 
Luther  and  his  immediate  followers  on  the  continent.  Not 
a  single  clear  voice,  apparently,  is  raised  for  civil  marriage. 
Technically  matrimony  as  a  sacrament  is  rejected  by  all,' 
though  its  sacramental  nature  was  first  definitely  denied  by 
the  church  in  the  Thirty-nine  Articles  of  1552.^  It  is,  how- 
ever, something  more  than  a  mere  civil  status.  It  is,  declares 
Fulke,  "nothing  else  but  a  devilish  slander  to  say  that  we 
'esteem  it  but  in  respect  of  the  flesh,  or  for  a  civil  contract."" 
Tyndale  calls  matrimony  "a  similitude  of  the  kingdom  of 
heaven;"  *  and  in  general  it  is  held  to  be  a  holy  institution, 
"ordained  by  God  himself  in  Paradise."*  It  represents  the 
union  of  Christ  and  the  church;*'  and  it  is  "pure,"  "digni- 
fied," and  "honorable"  for  all  men.^  Hence  the  natural  and 
scriptural  right  of  priests  to  marry  is  vindicated;^  and,  fol- 

1  Matrimony  is  no  sacrament,  except  in  the  general  sense  of  "mystery": 
Ceanmer,  Misc.  Writings,  115,  116;  Tyndale,  Doctrinal  Treatises,  I,  254;  idem, 
Answer  to  More,  175 ;  Calfhill,  An  Answer  to  John  MartialVs  Treatise  of  the  Cross, 
235  ff . ;  Rogers,  The  Catholic  Doc.  of  the  Church  of  England,  an  Exposition  of  the 
Thirty-Nine  Articles,  260  S.;  Fulke,  Answer,  229,  243;  idem,  Defence  against  Gregory 
Martin,  168,  492-96 ;  Jewell,  Works,  II,  1125 ;  Whitakee,  Disputation  on  Holy  Scrip- 
ture against  the  Papists,  197,  489. 

2FErEDBEEG,  EheschUessung,  309  n.  1.  "  Henry  the  VIII.  stood  so  far  upon  the 
ground  of  the  canonical  doctrine  that  before  and  after  his  breach  with  Leo  X.  he 
declared  marriage  to  be  a  sacrament." — Ibid, 

3  Fulke,  Defence  against  Gregory  Mai-tin,  492. 

♦  Tyndale,  Answer  to  More,  175. 

5  Jewell,  Works,  II,  1128;  Latimer,  Sermons  and  Remains,  161, 162;  Hutchin- 
son, TTorfcs,  148;  Becon,  Praj/ers,  27, 611 ;  Bullinger,  Decades,  1, 394, 397 ;  Beadfoed, 
Writings,  1, 167 ;  Tyndale,  Doctrinal  Treatises,  254. 

6BULLINGEE,  Decadcs,  I,  397;  Philpot,  Examinations  and  Writings,  246; 
Sandys,  Sermons,  317,  313-30  (marriage  in  general);  Tyndale,  Doc.  Treatises,  254; 
idem,  Answer  to  More,  153, 154. 

7CALFH1LL,  Answer,  238-41;  Bullinger,  Decades,  1,  394,  3%;  HOOPEE,  Early 
Writings,  375;  idem.  Later  Writings,  55;  Jewell,  Works,  I,  158;  II,  1128;  IV,  803; 
Latimee,  Sermons,  I,  366,  393 ;  idem.  Sermons  and  Remains,  160,  162 ;  Sandys,  Ser- 
moTis,  313,  314 ;  Tyndale,  Expositions,  125. 

8 Authorized  by  2  and  3  Ed.  VI.,  c.  21,  1549,  which  was  confirmed  in  1552: 
Ceanmer,  Misc.  Writings,  p.  x;  Latimee,  Sermons,  529  n.  3;  ZUrich  Letters,  II,  159; 
Statutes  at  Large,  II,  283,  305,  306. 


394  Matrimonial  Institutions 

lowing  St.  Paul,  the  forbidding  of  them  to  marry  is  called 
a  "doctrine  of  devils."' 

Still  the  new  teaching  did  not  at  once  find  expression  in 
the  law  of  the  land.  Under  its  influence,  at  the  beginning 
of  the  Reformation,  some  of  the  clergy,  notably  Archbishop 
Cranmer,  married ;  but  Henry  VIII.  tenaciously  clung  to 
the  doctrine  of  clerical  celibacy  and  issued  several  proclama- 
tions against  the  marriage  of  priests.^  Thus  in  1535  "his 
majestie  understanding  that  a  few  number  of  this  his  realme 
being  priests,  as  well  religious  as  other,  have  taken  wives, 
and  married  themselves,"  and  not  wishing  the  "generalitie 
of  the  clergy"  to  follow  their  example,  doth  command  all 
such  priests  "as  have  attempted  marriages"  or  shall  "here- 
after presumptuously  proceed  in  the  same,  that  they  nor  any 
of  them  shall  minister  any  sacrament  or  other  ministry 
mysticall,  nor  have  any  office,  dignity,  cure,  privilege,  profitt 
or  commoditye  heretofore  accustomed,  and  belonging  to  the 
clergie  of  this  realme,  but  shall  utterly  after  such  marriages 
be  expelled  and  deprived  from  the  same,  and  be  had  and 
reputed  as  lay  persons,  to  all  purposes  and  intents.  And 
that  such  as  shall  after  this  proclamation  ....  take  wives, 
and  be  married,  shall  run  in  his  grace's  indignation,  and 
suffer  further  punishment  and  imprisonment  at  his  grace's 
will  and  pleasure."^  Proclamations*  of  like  nature  were 
later  enacted;  and  finally  the  six-articles  law  of  1539  pro- 

1  Latimee,  Sermons  and  Remains,  77, 162 ;  Hoopee,  Early  Writings,  375 ;  idem. 
Later  Writings,  55,  56,  126 ;  Bullingee,  Decades,  IV,  509.  Cf.  Eogees,  Thirty-Nine 
Articles,  302-7 ;  Becon,  Prayers,  235  tf . ;  Coveedale,  Remains,  483-85 ;  Pilkington, 
Worlcs,  564;  Tyndale,  Expositions,  29, 151, 155, 156 ;  idem.  Doc.  Treatises,  230;  Jewell, 
Works,  II,  882 ;  III,  406 ;  Ceanmee,  Misc.  Writings,  393  n.  5,  also  pp.  viii,  x.  For 
many  other  references  see  the  Index  to  the  Parker  Society  Publications,  at  "  Mar- 
riage of  Clergy." 

2MAKOWEE,  Const.  Hist.  Eng.  Church,  220-24,  gives  an  excellent  discussion,  with 
qnotations  from  the  sources,  of  the  laws  relating  to  the  marriage  of  priests  from 
Henry  VIII.  to  James  I. 

3  WiLKiNS,  Concilia,  I,  776.    Compare  Makowee,  op.  cit.,  220  n.  17. 

*There  were  "similar  proclamations  of  16th  November,  1538  (Strype,  Cranmer, 
ed.  1812, 1,  98)  and  of  1539  (Wilkins,  III,  847).  The  proclamations  had  the  force  of 
law,  as  can  be  seen  from  31  Hen.  VIII.  {15-39),  c.  8."— Makowee,  op.  cit.,  221,  note.  Qf. 
Statutes  at  Large,  II,  143. 


Protestant  Conception  op  Marriage      395 

vided  that  all  marriages  or  matrimonial  contracts,  made  by 
priests  or  between  a  man  and  a  woman  either  of  whom  has 
vowed  chastity,  before  or  during  "this  present  parliament," 
shall  "be  utterly  void  and  of  none  effect;"  while  any  future 
transgression  is  to  be  punished  as  felony.'  Nevertheless 
Cranmer  was  allowed  to  retain  his  wife;  and  through  his 
influence  the  penalties  prescribed  by  the  six-articles  act 
were  somewhat  modified  in  1540.^ 

Under  Edward  VI.  the  doctrine  of  the  Reformation 
gained  a  victory.  The  six-articles  law  was  repealed  in 
1547.^  In  the  same  year  the  lower  house  of  convocation 
prayed  "that  all  provisions  against  clerical  marriages  might 
be  set  aside  and  all  vows  of  chastity  pronounced  void."  * 
Accordingly  by  2  and  3  Edward  VI.  (1548),  c.  21,  the  ob- 
stacles to  such  unions  were  formally  swept  away  on  grounds 
of  expediency;  though  the  act  sanctions  the  ancient  preju- 
dice by  declaring  that  "it  were  not  only  better  for  the  esti- 
mation of  priests,  and  other  ministers  in  the  Church  of  God, 
to  live  chaste,  sole,  and  separate  from  the  company  of  women 
and  the  bond  of  marriage,  but  also  thereby  they  might  the 
better  intend  to  the  administration  of  the  gospel,  and  be  less 
intricated  and  troubled  with  the  charge  of  household,  being 
free  and  unburdened  from  the  care  and  cost  of  finding  wife  and 
children,  and  that  it  were  most  to  be  wished  that  they  would 
willingly  endeavour  themselves   to  a  perpetual  chastity."* 

iThis  statute  (31  Hen.  VIII.,  c.  14)  may  be  found  in  Gee  anb  Haedy,  Documents, 
303-19;  an  abstract  in  Makowee,  op.  cii.,  221  n.  19;  and  a  summary  in  Statutes  at 
iar^e,  II,  149.  Compare  the  comments  on  the  act  as  sliowing  matrimony  "to  have 
been  a  more  grievous  offence  than  concubinage,"  in  New  Monthly  Review,  XXIX 
(1763),  270. 

2  By  32  Hen.  VIII.,  c.  x:  Makowee,  op.  cit.,  221  n.  20. 

3  By  1  Ed.  VI.,  c.  12  (1547) :  Statutes  at  Large,  II,  256. 

♦  Makowee,  op.  cit,  222;  ap.  Wilkins,  Concilia,  IV,  16.  Cf.  Gee  and  Haedy, 
Documents,  366. 

5  Ibid.,  367 :  Statutes  at  Large,  II,  283.  On  the  debates  and  controversial  writings 
connected  with  this  act  see  Buenet,  Hist,  of  Reformation,  I,  354-58.  By  the  Injunc- 
tions of  1548,  in  the  visitations  inquiry  is  to  be  made  whether  any  "do  condemn 
married  priests,  and  for  that  they  be  married  will  not  receive  the  communion  or 
other  sacraments  at  their  hands." — Caedwell,  Doc.  Annals,  1,  51. 


396  Matrimonial  Institutions 

This  clause  was  explained  by  the  act  of  5  and  6  Edward  VI. 
(1551-52),  c.  12,  "as  meaning  not  simply  that  the  marriages 
in  question  were  exempt  from  punishment,  but  that  they 
were  good  and  lawful  marriages,  the  offspring  of  which 
were  legitimate  and  could  inherit  in  the  usual  way,  and  that 
priests  might  be  tenants  by  courtesy  on  the  death  of  their 
wives,  and  wives  endowable  of  their  lands."  * 

After  the  accession  of  Mary,  a  royal  ordinance  again  pre- 
scribed celibacy  as  the  condition  of  holding  priestly  office.^ 
The  matrimonial  laws  of  Edward's  reign  were  repealed  ;^  and 
it  is  significant  of  Elizabeth's  conservative  position  on  reli- 
gious questions  that  those  enactments  were  not  restored  on 
her  coming  to  power.  She  was  shocked  at  the  marriage  of 
priests  and  was  very  reluctant  to  sanction  it  by  statute. 
"The  Queen's  majesty,"  writes  Sandys  to  Parker  in  1559, 
"will  wink  at  it  but  not  stablish  it  by  law,  which  is  nothing 
else  but  to  bastard  our  children;"*  and  two  years  later, 
according  to  Cecil,  "her  majesty  continueth  very  evil  affected 
to  the  state  of  matrimony  in  the  clergy.  And  if  [I]  were 
not  therein  very  stiff,"  she  "would  utterly  and  openly  con- 
demn and  forbid  it."  *    Yet  already  by  her  first  Injunctions, 

1  Summary  of  the  statute  by  Makowek,  op,  cit.,  222.  Cf.  Statutes  at  Large,  II, 
305 ;  BuENET,  Hist,  of  Reformation,  I,  432, 

2  See  the  "Articles  of  Queen  Mary,  4th  March,  1553,"  in  Caedwell,  Doc,  Ann,, 
1, 112, 113;  also  Makower,  op,  cit,,  222  n.  26.  Such  married  priests,  "after  depriva- 
tion of  their  benefice,  or  ecclesiastical  promotion,"  are  to  "be  also  divorced  every  one 
from  his  said  woman,  and  due  punishment  otherwise  taken  for  the  offence  therein." 
But  the  bishops  are  to  "use  more  lenity  and  clemency  with  such  as  have  married, 
whose  wives  be  dead,  than  with  others  whose  women  do  yet  remain  alive;"  as  also 
with  those  who,  with  their  wife's  consent,  in  the  bishop's  presence,  promise  to 
"abstain."  Cf,  Burnet,  Hist,  of  Reformation,  I,  490,  who  says  "many  were  set  to 
write  against  the  marriage  of  the  clergy." 

3  See  1  Mary,  stat.  2,  c.  2, 1553 :  Gee  and  Haedy,  Documents,  377-80. 
*Pakker's  Correspondence,  66. 

^Ibid.  (Cecil  to  Parker,  Aug.  12, 1561),  148.  Parker  replies :  "  I  was  in  an  horror 
to  hear  such  words  to  come  from  her  mild  nature  and  christianly  learned  conscience, 
as  she  spoke  concerning  God's  holy  ordinance  and  institution  of  matrimony;"  and 
he  complains  that  she  holds  that  the  English  clergy  "alone  of  our  time"  are  "openly 
brought  in  hatred,  shamed  and  traduced  before  the  malicious  and  ignorant  people, 
as  beasts  without  knowledge  to  Godward,  in  using  this  liberty  of  his  word,  as  men  of 


Protestant  Conception  of  Marriage       397 

1559,  she  had  grudgingly  given  her  consent  to  clerical  mar- 
riage, though  it  was  hampered  by  severe  conditions.  "It  is 
thought  therefore  very  necessary,  that  no  manner  of  priest 
or  deacon  shall  hereafter  take  to  his  wife  any  manner  of 
woman  without  the  advice  and  allowance  first  had  upon  good 
examination  by  the  bishop  of  the  same  diocese,  and  two  jus- 
tices of  the  peace  of  the  same  shire,  dwelling  next  to  the 
place,  where  the  same  woman  hath  made  her  most  abode 
before  her  marriage ;  nor  without  the  good  will  of  the  parents 
of  the  said  woman,  if  she  have  any  living,  or  two  of  the  next 
of  her  kinsfolk,  or,  for  lack  of  knowledge  of  such,  of  her 
master  or  mistress,  where  she  serveth."  If  "any  shall  do 
otherwise,"  he  is  forbidden  to  administer  either  the  "word" 
or  the  "sacraments,"  and  is  declared  incapable  of  "any 
ecclesiastical  benefice."  The  marriage  of  a  bishop  is  allowed 
only  on  approval  of  the  "metropolitan  of  the  province"  and 
of  "such  commissioners"  as  the  queen  may  appoint;  while 
the  master,  dean,  or  head  of  a  college  must  obtain  the  con- 
sent of  those  to  whom  the  right  of  visitation  belongs,  who 
shall  provide  that  the  marriage  "tend  not  to  the  hindrance 
of  their  house."'  Two  years  later  "the  queen  further  or- 
dained that,  upon  pain  of  forfeiting  his  office,  no  head  or 
member  of  any  college  or  cathedral  church  should  have  his 
wife  or  other  woman  within  the  precincts,"^  and  "in  the 
thirty-nine  articles  of  1563  the  marriage  of  the  clergy  was 
recognized  as  permissible. "  ^     Still  throughout  the  reign  of 

efErenate  intemperancy Insomuch  that  the  Queen's  Highness  expressed  to  me 

a  repentance  that  we  were  thus  appointed  in  office,  wishing  it  had  been  otherwise." 
—Correspondence,  156, 157.    Marriage  of  priests  was  defended  by  Cox,  ibid.,  151. 

1  Gee  and  Hardy,  Documents,  431.  432 ;  Protheeo,  Statutes  and  Documents, 
IMS.;  Caedwell,  Doc.  Anii.,  I,  192,  193;  Makowee,  op.  cit.,  223  n.  27;  Buenet, 
Hist,  of  Reformation,  I,  577.  These  regulations  of,  marriage  are  mentioned  by  Pee- 
CIVAL  WiBUEN  in  Zurich  Letters,  II,  359.  Cf.  ibid.,  II,  61  n.  129;  I,  164,  179,  358. 
Compare  the  hostile  "Articles  of  Visitation"  of  Bishop  Bonner,  1554:  Caedwell, 
op.  cit,  1, 125, 126 ;  and  compare  ibid.,  153, 171,  172. 

2  Makowee,  op.  cit.,  223  n.  28;  Caedwell,  Doc.  Ann.,  I,  273. 

3  See  the  extract  from  the  thirty-second  article  in  Makowee,  op.  cit.,  223  n.  29. 


398  Matrimonial  Institutions 

Elizabeth,  apparently,  clerical  marriages  continued  to  be 
resisted;  for  "in  the  Millenary  Petition  addressed  by  the 
Puritans  to  James  I.  at  his  accession,  among  other  requests 
was  one  for  the  restoration  of  the  laws  of  Edward  VI.  as  to 
the  marriage  of  priests.'  That  restoration  and,  consequently, 
the  repeal  of  the  obstructing  act  of  Mary  were  accomplished" 
in  1603.=^ 

In  fact,  the  primitive  ascetic  ideal  was  by  no^  means 
utterly  extinct  among  the  Protestant  theologians  of  the 
Tudor  period.  Some,  like  Latimer,  Fulke,  and  Hutchinson, 
insist  that  matrimony  is  inferior  to  virginity;^  and  very 
generally  it  is  still  held  to  be  ordained  of  heaven,  especially 
as  a  "remedy"  for  sin,  though  more  worthy  motives  are 
admitted.  According  to  Bradford,  God  "has  made  woman- 
kind, and  ordained  the  state  of  matrimony,"  "not  only  for 
the  help  and  community  of  man,  but  also  for  a  remedy  of 
man's  infirmity."  *  Bullinger  assigns  the  usual  three  rea- 
sons "for  which  God  hath  ordained  marriage  for  men  to 
embrace."  The  "first  cause  why  wedlock  was  instituted 
is  man's  commodity,  that  thereby  the  life  of  man  might 
be  the  pleasanter  and  more  commodious;  for  Adam  seemed 
not  to  live  half  happily  nor  sweetly  enough,  unless  he  had 
a  wife  to  join  himself  unto ;  which  wife  is  not  in  the  scrip- 
tures called  an  impediment  or  necessary  evil,  as  certain 
poets  and  beastly  men  who   hated  women  have  foolishly 

iMakower,  op.  city  223,  71.  The  Millenary  Petition  is  in  Gee  and  Hardy, 
Documents,  508-11 ;  Peothero,  Statutes  and  Documents,  413-16 ;  according  to  Mako- 
wer,  in  Perry,  Hist.  Eng.  Church,  II,  372,  c.  22,  notes  and  illustrations ;  Collier, 
Eccles.  Hist.,  ed.  1852,  VII,  273. 

2  By  1  James  I.,  c.  25,  sec.  8 :  Prothero,  Statutes  and  Documents,  255 ;  Statutes  at 
Large,  II,  640.    Cf.  Makowee,  op,  cit.,  224. 

3 "But  when  thou  livest  godly  and  honestly  in  single  life,  it  is  well  and  allow- 
able afore  God ;  yea,  and  better  than  marriage." — Latimer,  Sermons,  393,  394.  Cf. 
Fulke,  Answers,  228,  383;  idem.  Defence,  492;  Hutchinson,  Works,  148;  see  also 
Cartwright,  in  Whitgift's  Works,  III,  293.  But  see  the  curious  passage  in  Tyn- 
DALe's  Doctrinal  Treatises,  21,  which  should  be  compared  with  his  argument  against 
the  doctrine  that "  widowhood  and  virginity  exceed  matrimony,"  ibid,,  313-15. 

*  Bradford,  Writings,  I,  167. 


Protestant  Conception  of  Marriage       399 

jangled."'  The  "second  cause  is  the  begetting  of  children 
for  the  preservation  of  mankind;"  and  the  third  is  to  provide 
a  safeguard  against  the  weakness  of  the  flesh.'' 

Thus  the  change  effected  by  the  religious  revolution  in 
the  conception  of  marriage,  highly  important  as  it  was  from 
a  speculative  point  of  view,  was  not  destined  to  bear  its 
proper  fruit  until  after  many  days.  In  Germany,  after  a 
time,  the  bolder  and  more  liberal  teachings  of  Luther  were 
generally  ignored;  so  that  by  the  middle  of  the  seventeenth 
century  the  reactionary  theories  which  had  then  gained 
ascendency  were  substantially  in  harmony  with  the  ideas  of 
the  English  clergy.  In  both  countries  the  ecclesiastical 
courts  still  continued  to  try  matrimonial  causes  in  the 
spirit  of  the  canon  law;  and  more  and  more,  as  the  new 
churches  grew  in  power  and  became  conservative,  did  the 
theological  view  of  the  nature  of  marriage  approach  the 
ancient  dogma.  "According  to  the  canon  law,  the  church 
claimed  matrimonial  jurisdiction  because  marriage  was  a 
sacrament;  by  the  Protestants  marriage  was  made  almost  a 
sacrament  because  the  church  exercised  matrimonial  juris- 
diction."* Not  until  the  full  triumph  of  civil  marriage  in 
the  nineteenth  century  were  the  logical  results  of  the  new 
doctrines  at  last  attained. 

III.       OHILD-MARRIAGES    IN   THE    AGE    OF    ELIZABETH 

Seldom  has  a  more  vivid  light  been  thrown  on  social  con- 
ditions than  that  afforded  for  the  age  of  Elizabeth  by  the 
depositions  taken  in  the  bishop's  court  of  the  diocese  of 
Chester,  1561-66,  and  edited  for  the  Early  English  Text 

1  BuLiLiNGEE  quotes  in  favor  of  marriage  the  views  of  Antipatek,  In  sermone  de 
nuptiis,  and  Hieeocles,  De  nuptiis. 

2  BULLINGEE,  Decades,  I,  394-410.  The  three  reasons  are  also  given  by  Sandys, 
Sermons,  316  ff. ;  and  James  I.,  "Basilikon  Doron,"  Workes  (London,  1616),  171.  On 
marriage  as  a  "remedy"  cf.  also  Ceanmee,  Misc.  Writings,  115,  116;  TyndaIjB, 
Expositions,  125 ;  Hoopee,  Early  Writings,  381 ;  Becon,  Catechism,  103. 

3  Fbiedbeeg,  Echeschliessung,  192. 


400  Matrimonial  Institutions 

Society  by  Furnivall  in  1897.  Their  value  for  the  stu- 
dent is  enhanced  by  the  very  lively  "forewords"  of  the 
learned  and  enthusiastic  editor.  The  evils  naturally  flowing 
from  the  law  and  doctrine  of  espousals  are  here  realistically 
disclosed  in  the  "  trothplights "  and  the  similar  cases  of 
"clandestine  marriages."*  There  is  the  usual  juggling  with 
the  words  of  the  present  or  future  tense;  and  the  usual 
puzzling  over  conditions  and  irregular  phrases.  For  the 
basest  of  motives  girls  are  tricked  into  vows  which  may  or 
may  not  prove  to  be  valid  marriages  according  to  the  un- 
certain interpretation  of  the  words  or  acts  of  betrothal 
sworn  to  in  court.  "Ten  of  the  seventeen  cases"  of  troth- 
plight,  says  Furnivall,  "show  us  men  trying  to  sneak 
out  of  their  contracts  when  they've  had  their  fill  of  pleas- 
ure with  the  women."  ^  Needy  and  unscrupulous  priests, 
worthy  predecessors  of  the  notorious  Fleet  parsons,  without 
banns  or  license,  are  seen  "solemnizing"  the  nuptials  "ac- 
cordinge  to  the  book  of  Common  prayer,"  in  a  private  house, 
in  a  meadow,  or  on  the  "heighe  waie,"  during  "the  night 
season"  and  "by  the  lighte  of  the  moone."^ 

The  astonishing  prevalence  of  child-marriages  is,  however, 
the  most  important  fact  revealed  by  these  documents.*  In  a 
single  diocese  during  the  short  space  of  six  years,  besides 
three  "ratifications,"  occurred  twenty-eight  cases  of  so-called 
divorce  or  voidance  of  contracts  which  were  formed  in  infancy 
or  early  childhood.     The  age  of  the  persons  varies  from  two 

1  For  the  trothpUghts  and  clandestine  contracts  see  Fuenivall,  Child-Mar- 
riages, xliii-liii,  Ixii,  Ixiii,  56-71,  140,  141,  184-202.  Chamberlain,  The  Child  and 
Childhood  in  Folk-Thought,  224-33,  has  made  good  use  of  Furnivall's  collection. 

2  Fuenivall,  op.  cit.,  xliii. 

^Ibid.,  140, 141.  Further  light  is  thrown  on  the  secret  marriages  by  the  cases  of 
adultery  and  affiliation:  ibid.,  72-102,  202-204. 

*  Ibid.,  xv-xliii,  1-55,  183,  184.  In  addition  to  these  Chester  cases  Fuenivall 
(xxi-xliii)  presents  very  interesting  material  regarding  child-marriages,  some  of 
which  were  before  or  after  the  age  of  Elizabeth.  Two  cases  under  Henry  VII.  and 
Henry  VIII.,  respectively,  are  mentioned  in  Reports  of  the  Hist.  Manuscripts  Com- 
mission, III,  247.  Sometimes  such  marriages  wore  secured  by  abduction  or  coa- 
spiracy :  see  ibid..  Ill,  55,  59,  61  (three  cases  in  the  reign  of  James  I.). 


Protestant  Conception  of  Marriage   401 

to  thirteen  years;  and  in  at  least  ten  cases  the  girl  is  older 
than  the  boy.  It  should  also  be  observed  that  these  thirty- 
one  contracts  are  merely  those  brought  before  the  court  for 
confirmation  or  annulment  after  at  least  one  of  the  parties 
has  reached  the  age  of  puberty,  which  by  the  canon  law  is 
fixed  at  twelve  for  females  and  fourteen  for  males.  It  is,  of 
course,  proper  to  assume  that  the  number  of  child-marriages 
which  never  thus  came  up  for  settlement  was  very  much 
larger  than  the  number  of  those  which  did  so  arise.  What 
the  number  for  all  England  may  have  been  during  the  period, 
it  is  startling  to  contemplate !  Moreover,  the  majority  of 
these  marriages  took  place,  not  among  the  rich  or  noble,  but 
among  common  people  of  small  means.  In  a  number  of 
instances  we  are  told  in  the  record  that  the  infant  bride  or 
bridegroom  was  carried  before  the  priest  in  someone's  arms. 
Thus,  in  a  case  which  arose  in  1564,  a  witness  deposes  that 
"he  was  present  bie,  when  John  Somerforth  and  Jane  Brer- 
ton  were  maried  together  in  the  parish  church  of  Brerton 
about  xij  yeres  ago  ....  that  he  carried  the  said  John  in 
his  armes,  beinge  at  tyme  of  the  said  Mariage  about  iij  yeres 
of  age,  and  spake  somme  of  the  wordes  of  Matrimonye,  that 
the  said  John,  bie  reason  of  his  younge  age,  cold  not  speake 
hym  self,  holdinge  him  in  his  armes  all  the  while  the  wordes 
of  Matrimonie  were  in  speakinge.  And  one  James  Holford 
caried  the  said  Jane  in  his  armes,  beinge  at  the  said  tyme 
about  ij  yeres  of  age,  and  spake  all,  or  the  most  parte  of,  the 
wordes  of  matrimony  for  her."  Being  further  "required 
whether  the  said  marriage  was  euer  ratified  bie  carnall  Copu- 
lacion  or  other  meane,  Answereth  that,  in  his  Conscience,  it 
was  neuer."  Another  witness  testified  to  the  same  facts  and 
added,  "it  was  the  youngest  Mariage  that  euer  he  was  at."* 
Looked  at  from  a  religious  point  of  view,  it  would  be 
hard  to  imagine  a  more  absurd  travesty  of  "holy  wedlock" 

iFdenivall,  op.  cit,  25,  28. 


402  Matrimonial  Institutions 

than  such  proceedings  conducted  by  the  parish  priest.*  Nor 
was  there  much  sentiment  involved  in  the  matter.  If  the 
great  folk  betrothed  their  children  while  babes  to  escape  the 
king's  right  of  wardship,  the  small  folk  were  influenced  by 
like  motives  on  a  smaller  scale.  "If  the  parent  of  either 
child  is  mercenary,"  summarizes  Furnivall,  "a  money-bar- 
gain is  made  for  it:  the  father  of  a  boy  of  two,  gets  from 
an  older  girl's  father,  'monie  to  bie  a  pece.of  land,' and  exe- 
cutes a  Bond  to  repay  the  money  if  his  boy  doesn't  marry 
the  girl  (pp.  6-9).  In  another  case,  the  boy's  father  is  in 
debt,  *and  to  get  somme  money  of  William  Whitfield,  to  the 
discharge  of  his  debtes,  maried  and  bargained  his  sonne  to 
the  said  Whitfeildes  doughter'  (pp.  23,  24).  Again,  a  girl  of 
3  or  4  is  married  to  a  boy  of  7  'biecause  her  frendes  thought 
she  shuld  have  had  a  lyvinge  bie  hym'  (p.  4),  and  her  father- 
in-law  is  under  Bond  to  marry  them  (p.  5).  So  again,  a 
girl's  father  says  that  she  married  a  boy  of  her  own  age, 
11-12  'biecause  she  sliold  have  had  bie  hym  a  prety  bar- 
gane,  yf  they  cold  have  lovid,  on  the  other'  (p.  12).  Another 
girl  of  11  is  married  to  a  boy  of  9,  because,  on  her  father's 
death,  the  boy's  father  gets  the  landlord's  leave  to  take-on 
the  girl's  house  (p.  10).  Another  girl  of  8  is  married  to  a 
boy  of  10,  because  the  boy's  father  feard  'lest  he  shuld  lose 
his  parte  of  his  lyvinge'  in  a  tenement  which  he  held  in 
common  with  the  girl's  protector  (p.  14).  In  another  instance, 
the  girl's  grandfather  'was  a  very  welthie  man;  and  it  was 
supposed  that  he  wold  have  bene  good  vnto'  her  &  her  boy- 
husband,  'and  bestowid  somme  good  ferme  apon  her'  (p.  32), 
so  a  boy  of  12  married  her  when  she  was  10.  Other  children 
are  married  'bie  the  compulsion  of  their  frendes'  (pp.  11,  13, 
23  &c.);  another  'by  a  wile'  (p.  16),  the  girl  being  invited 

1  In  the  light  of  these  facts,  some  of  the  discussions  of  child-marriages  in  India, 
often  intolerant  or  condescending,  have  a  very  curious  interest ;  compare  the  sensible 
and  instructive  paper  of  Rees,  "  Meddling  with  Hindu  Marriages,"  Nineteenth  Cen- 
tury, Oct.,  1890,  660-76. 


Protestant  Conception  of  Marriage       403 

by  a  relation  of  the  boy's  to  come  and  make  merry,  and  then 
married  to  the  boy  against  her  consent.  But  in  one  case,  a 
girl  arranged  her  own  marriage.  She  was  'a  bigge  damsell 
&  mariageable'  (p.  47),  that  is,  past  12,  and  evidently  fancy- 
ing a  nice  boy  of  10-11,  'intised  hym  with  two  Apples,  to 
go  with  her  to  Colne,  and  to  marry  her'  (p.  45).  No  wonder 
that  this  boy  'repentid'  next  morning,  and  that  others  say 
'at  the  tyme  of  their  mariage  they  knewe  not  what  they  did' 
(p.  15)."^ 

IFUENIVALL,  op.  cit.,  "Forewords,"  xv,  xvi. 

According  to  SwiNBDENE,  Of  Spousals,  18  ff.,  both  by  civil  and  canon  law,  cliil- 
dren  are  infants  until  they  have  completed  the  seventh  year;  and  "Spousals  con- 
tracted during  Infancy  are  utterly  void,  whether  the  Infants  themselves,  or  their 
Parents  for  them,  do  make  the  Contract."  After  the  close  of  that  period  such  void 
contracts  may  be  ratified  by  express  words  or  by  deeds.  On  the  other  hand,  spousals 
contracted  between  infancy  and  the  "ripe"  years  of  twelve  or  fourteen  are  voidable 
by  either  spouse  when  that  age  is  reached.  To  express  dissent  divorce  proceedings 
are  not  necessary,  although  a  divorce  may  be  desirable  to  prevent  future  question. 
Either  party  may  cancel  the  contract  by  simply  marrying  another  person  ;  just  as  a 
child-marriage  may  be  ratified  by  words  of  consent  or  by  simply  living  together  as 
husband  and  wife:  compare  Fuenivall,  op.  cit.,  xix-xxv ;  and  The  Lawes  Reso- 
lutions of  Womens  Bights,  7,  52,  57. 


CHAPTER  X 
RISE  OF  CIVIL  MARRIAGE 

[Bibliographical  Note  X.— The  beginning  of  the  Puritan  concep- 
tion of  marriage  as  a  civil  contract  is  best  seen  in  Whitgif t's  "  Defence 
of  the  Answer,"  Works  (Parker  Society,  Cambridge,  1851-53),  comprising 
Cartwright's  Reply  to  the  Answer,  as  well  as  extracts  from  the  Answer 
itself,  and  from  the  original  Admonition  of  1572  which  gave  rise  to  the 
whole  controversy.  The  views  of  the  Independents,  when  fully  devel- 
oped, find  their  fullest  expression  in  the  writings  of  Milton  on  marriage 
and  divorce,  constituting,  besides  scattered  allusions.  Vol.  Ill  of  his 
Prose  Works  (Bohn  ed.,  London,  1888);  the  Likeliest  Means  to  remove 
Hirelings  out  of  the  Church,  and  the  version  of  Bucer's  De  regno 
Christi,  entitled  The  Judgment  of  Martin  Bucer,  being  of  special 
interest  in  this  connection.  For  the  early  period  some  useful  material 
is  aflforded  by  Prothero's  Statutes  and  Constitutional  Documents  (Ox- 
ford, 1894);  Brereton's  Travels  in  Holland,  1634r-35:  "  Chetham  Society 
Publications,"  Vol.  I ;  Hallam's  Constitutional  History  (New  York, 
1880);  and  Ranke's  England  in  the  Seventeenth  Century  (Oxford,  1875). 

The  act  of  1653  is  contained  in  Scobell's  Collection  of  Acts  and 
Ordinances,  1640-1656  (London,  1658);  and  in  the  contemporary  news- 
paper entitled  Several  Proceedings  of  Parliament,  No.  6 ;  but,  like  all 
the  acts  of  the  revolutionary  period,  it  is  omitted  in  every  edition  of 
the  Statutes  at  Large.  Original  material  for  a  study  of  the  administra- 
tion of  this  law  may  be  found  in  the  parish  registers  covering  the  inter- 
regnum edited  by  Bulwer,  Parish  Registers  of  St.  Martin-cum-Gregory 
in  the  City  of  Forfc,  Part  IV  (York,  1895);  Cowper,  The  Booke  of  Register 
of  the  Parish  of  St.  Peter  in  Canterbury  (Canterbury,  1888);  Parish 
Registers  of  Ellough,  Suffolk  (privately  printed,  1886);  Hoveden,  The 
Register  Booke  .  ...  of  the  Cathedral  and  Metropoliticall  Church 
.  .  .  .  o/ Cawfer&Mrie  (Harleian  Society,  London,  1878);  Margerison,  T/ie 
Registers  of  the  Parish  Church  of  Calverley,  in  the  West  Riding  of 
....  York  (Bradford,  1880-87);  Moore,  Registers  of  Broad  Chalke, 
County  Wilts  (London,  1880);  Phillimore,  Gloustershire  Pa7'ish  Regis- 
ters (London,  1896);  Radcliffe,  The  Parish  Registers  of  St.  Chad, 
Saddlworth  in  County  of  York  (Uppermill,  1887);  Sanders,  The  Parish 
Registers  of  Eastham,  Cheshire  (London,  1891);  idem,.  The  Parish 
Registers  of  Bebington,  County  Chester  (Liverpool,  1897) ;  Stavert,  The 
Parish  Registers  of  Burnsall-in-Craven  (Skipton,  1893);  and  Turner, 

404 


Rise  of  Civil  Marriage  405 

The  Non-Conformist  Register  (Brighouse,  1881).  There  is  an  interest- 
ing table  in  Graunt's  Natural  and  Political  Observations  (Oxford, 
1665);  and  examples  of  marriage  certificates  and  other  records  under 
the  act  of  1653  may  be  found  in  The  Register  Booke  of  Inglebye  iuxta 
Grenhow  (Canterbury,  1889);  Burn's  Parish  Registers;  Priedberg's 
Eheschliessung ;  Notes  and  Queries  (London,  1850  flF.);  and  the  Gentle- 
man's Magazine  (London,  1731  fif.).  The  two  periodicals  just  mentioned, 
like  the  Monthly  Review  (London,  1749  ff.),  contain  a  great  deal  of 
matter  —  curious  antiquities  as  well  as  serious  discussion  —  relative  to 
Fleet  marriages,  the  Hardwicke  act,  and  other  phases  of  the  subject. 
Inderwick's  Interregnum  (London,  1891)  has  an  instructive  discussion 
of  some  questions  connected  with  the  marriage  act ;  and  like  Jenk's 
Constitutional  Experiments  (Cambridge,  1890)  it  is  valuable  for  appre- 
ciating the  legislation  of  the  Commonwealth.  Lathbury's  History  of 
the  Book  of  Common  Prayer  (Oxford  and  London,  1859)  describes  the 
operation  of  the  act ;  and  some  cases  noted  in  Jeaflfreson's  Middlesex 
County  Records  (London,  n.  d.)  prove  the  need  of  the  safeguard  against 
abduction  or  fraud  afforded  by  the  act ;  and  there  are  a  number  of 
useful  documents  in  the  Reports  of  the  Historical  Manuscripts  Com- 
mission. Illustrations  of  the  ridicule  called  out  by  banns  in  the 
market-place  and  the  justices'  celebration  may  be  found  in  Butler's 
Hudibras  (Boston,  1864),  and  Flecknoe's  Diarium  (London,  1656). 

On  the  Fleet  and  Mayfair  celebrations  Burn's  now  very  scarce  Fleet 
Marriages  (2d  ed.,  London,  1834)  is  the  chief  authority.  It  is  supple- 
mented by  his  Parish  Registers ;  and  these  books  as  well  as  the  original 
sources  have  been  used  for  Friedberg's  excellent  account  in  the  Ehe- 
schliessung, which  on  this  topic  and  the  whole  ground  covered  by  the 
present  chapter  is  a  trustworthy  guide.  A  famous  contemporary  book 
is  Brady's  Some  Considerations  upon  Clandestine  Marriages  (2d  ed., 
London,  1750).  There  is  an  article  by  Ewald,  "Fleet  Marriages,"  in  his 
Paper  and  Parchment  (London,  1890);  and  Waters's  excellent  Parish 
Registers  (new  ed.,  London,  1883)  is  more  reliable  than  the  similar 
work  of  Burn.  Fleet  marriages  are  also  discussed,  with  interesting 
extracts  from  the  contemporary  newspapers,  by  Tegg,  The  Knot  Tied 
(London,  1877);  Ashton,  The  Fleet  (London,  1889);  and  Jeaflfreson, 
Brides  and  Bridals  (London,  1872),  whose  book,  like  Brand's  Observa- 
tions on  the  Popular  Antiquities  of  Great  Britain  (London,  1873-77), 
contains  a  mass  of  information  relating  to  every  phase  of  marriage  cus- 
toms. On  these  marriages  and  on  the  Hardwicke  act  see  also  Horace 
Walpole's  Letters  (London,  1880);  and  Lecky,  History  of  England  in 
the  18th  Century  (New  York,  1879). 

Many  illustrations  of  matrimonial  usage  and  folklore  may  be  found 
in  Hewlett,  "Marriage  Customs,"  in  Andrews's  Curious  Church  Customs 
(London,  1895);  Edgar,  "Marriage  in  Olden  Times,"  in  his  Old  Church 


406  Matrimonial  Institutions 

Life  in  Scotland  (London,  1886);  Vaux,  "Marriage  Customs,"  in  his 
Church  Folklore  (London,  1894);  Ashton,  Social  Life  in  the  Reign  of 
Queen  Anne  (London,  1882);  and  Hutchinson,  Chronicles  of  Gretna 
Green  (London,  1844),  In  England  as  well  as  in  Germany  the  question 
of  polygamy  was  much  debated.  A  version  of  Ochino  was  brought 
out  by  Garfeild,  A  Dialogue  of  Polygamy  (London,  1657).  This  was 
followed  by  the  anonymous  Concubinage  and  Polygamy  Disproved 
(London,  1698);  Turner,  Discourse  on  Fornication  with  an  Apjiendix 
on  Concubinage  (London,  1698);  Delany,  Reflections  upon  Polygamy 
(London,  1737),  opposing  the  practice ;  Hamilton,  A  Treatise  on  Po- 
lygamy proving  it  to  be  the  Will  of  God  (Dublin,  1786);  especially  the 
notorious  work  of  Madan,  Thelyphthora ;  or  a  Treatise  on  Female 
Ruin  (2d  ed.,  London,  1781);  answered  by  Towers,  Polygamy  Unscrip- 
tural;  or  two  Dialogues  between  Philalethes  and  Monogamus  (London, 
1780);  by  Hill,  The  Blessings  of  Polygamy  (London,  1781);  and  more 
elaborately  by  Cookson,  Thoughts  on  Polygamy  (Winchester,  1782). 
See  also  D wight.  The  Hebrew  Wife  (Glasgow,  1837);  and  Colenzo,  A 
Letter  to  the  Archbishop  of  Canterbury  (Cambridge,  1862). 

The  development  of  contemporary  sentiment  and  opinion  may  be 
traced  in  The  Lawes  Resolutions  of  Womens  Rights  (London,  1632); 
Courtin,  A  Treatise  of  Jealousie  (London,  1684);  Salmon,  A  Critical 
Essay  Concerning  Marriage  (London,  1724);  De  Foe,  Religious  Court- 
ship (London.  1729);  Astell's  sensible  and  liberal  Reflections  upon  Mar- 
riage (4th  ed.,  London,  1730);  the  critical  and  vigorous  Hardships  of 
the  English  Laws  in  Relation  to  Wives  (London,  1735);  Dove,  Disserta- 
tions on  Marriage,  Celibacy,  etc.  (1769 j;  Giles,  A  Treatise  on  Marriage 
(London,  1771) ;  the  anonymous  Considerations  on  the  Causes  of  the 
present  Stagnation  of  Matrimony  (London,  1772),  alleging  the  unrea- 
sonable authority  of  parents ;  The  Laws  respecting  Women,  as  they 
regard  their  Natural  Rights  (London,  1777);  Wollstonecraft,  A  Vindi- 
cation of  the  Rights  of  Men  (London,  1790);  her  more  celebrated  A 
Vindication  of  the  Rights  of  Woman  (London,  1792);  Jay,  Essay  on 
Marriage,  or  the  duty  of  Christians  to  marry  Religiously  (2d  ed.,  Bath, 
1807);  Observations  on  the  Marriage  Laws  (London,  1815);  Thompson, 
Marriage:  Two  Sermons  (London,  1837);  and  Wardell-Yerburgh  (ed.). 
Marriage  Addresses  arid  Marriage  Hymns  (London  and  New  York, 
1900).  For  the  socialistic  marriage  doctrines  of  Robert  Owen  and 
others  see  Bibliographical  Note  XVIII. 

For  the  debates  on  the  act  of  1753  see  Cobbett,  Parliamentary 
History,  XV;  the  lively  comments  of  Horace  Walpole  in  his  Letters; 
and  the  same  writer's  account  of  the  proceedings  in  his  Memoirs  of  the 
Reign  of  George  the  Second  (2d  ed.,  London,  1847).  The  act  is  harshly 
criticised  by  Madan  ;  and  among  the  writings  which  it  called  forth  are 
Considerations  on  the  Bill  for  preventing  Clandestine  Marriages  (Lon- 


KiSE  OF  Civil  Marriage  407 

don,  1753);  Fry,  Considerations  on  the  Act  to  prevent  Clandestine  Mar- 
riages (London,  1754);  M.&rrick,  Marriage  a  Divine  Institution  (Lon- 
don, 1754),  approving  the  conservative  views  of  Stebbing,  An  Enquiiry 
into  the  Force  and  Operation  of  the  Annulling  Clauses  (London,  1754); 
idem,  A  Dissertation  on  the  Power  of  States  to  deny  Civil  Protection 
to  the  Marriage  of  Minors  (London,  1755);  both  papers  being  criti- 
cised by  Sayer,  A  Vindication  of  the  Power  of  Society  to  Annull  the 
Marriage  of  Minors  (London,  1755).  The  acts  of  1753  and  1836  are 
noticed  also  by  Mahon,  History  of  England  (New  York,  1849);  Knight, 
History  of  England  (New  York,  1880);  Lecky,  Democracy  and  Liberty 
(New  York,  1896);  and  Spencer  Walpole,  History  of  England  (London, 
1890). 

On  the  existing  law  as  developed  since  1753,  especially  the  acts  of 
1836,  the  Parliamentary  History  and  the  Parliamentary  Debates  are 
of  course  necessary ;  and  for  this  topic,  as  well  as  for  the  entire  chapter, 
the  Statutes  at  Large  are  in  constant  requisition.  There  are  contem- 
porary notices  of  the  acts  of  1823  and  1836  in  the  Annual  Register,  LXV 
and  LXXVIII ;  while  the  sources  have  been  carefully  examined  by 
Oppenheim  in  his  valuable  monograph,  "Ueber  die  Einfiihrung  der 
Civil-Ehe  in  England,"  in  ZKR.,  I  (Berlin,  1861).  The  temper  and 
arguments  with  which  the  efforts  to  secure  justice  were  opposed  are 
disclosed  in  A  Letter  to  the  ....  Earl  of  Liverpool  (London,  1827)  by 
a  "Presbyter  of  the  Church  of  England;"  Le  Geyt,  Observations  on 
the  Bill  now  before  Parliament  (London,  1827);  and  Griffin-Stonestreet, 
Nuptice  Sacrce :  Objections  to  the  Amended  Unitarian  Marriage  Bill 
(London,  1828).  See  further  Phillimore,  Substance  of  the  Speech  .... 
on  moving  .  ...  to  amend  the  Marriage  Act  (2d  ed.,  London,  1822); 
and  Lawton's  edition  of  The  Marriage  Act,  i  Geo.  IV.,  c.  16  (London, 
1823);  Beard,  Notes  on  Lord  John  RusseVs  Marriage  Bill  (London, 
1834);  and  in  particular  the  "Report  of  the  Royal  Commission  on  the 
Laws  of  Marriage,"  in  British  Dociiments,  1867-68,  XXXII  (London, 
1868).  Of  service  also  are  Cooke,  A  Report  of  the  Case  of  Horner 
against  Liddiard,  Consistorial  Court  of  London,  1799  (London,  18(X)); 
Poynter,  Doctrine  and  Practice  of  the  Ecclesiastical  Courts  in  Doctors 
Commons  (London,  1822);  Robertson,  The  Law  of  Legitimation  by 
Subsequent  Marriage  (London,  1829);  Moodie,  Principles,  Changes, 
and  Improvements  in  the  Law  of  Marriage  (London,  1849);  Wilks, 
Present  Law  of  Banns  a  Railroad  to  Marriage  (London,  1864),  with 
which  may  be  compared  Ewen,  Proclamation  of  Banns  in  Scotland 
(Edinburgh,  1877). 

The  best  short  technical  treatises  on  the  English  marriage  laws  as 
a  whole  are  Hammick's  The  Marriage  Law  (London,  1887);  Geary's 
Marriage  and  Family  Relations  (London,  1892);  Ernst's  Treatise  on 
Marriage  and  Divorce  (London,  1879);  and  the  concise  discussions  in 


408  Matrimonial  Institutions 

Brett's  excellent  Commentaries  on  the  Laws  of  England  (London, 
1891).  Of  some  service  also  is  Tegg's  popular  book,  The  Knot  Tied, 
already  mentioned ;  and  the  compact  manual  of  Moore,  How  to  Be 
Married  (London,  1890),  is  convenient  for  ready  reference.  Useful  like- 
wise in  this  study  are  the  works  of  Blackstone,  Toulmin  Smith,  Bishop, 
Evans,  Fischel,  Burn  {Ecclesiastical  Laws),  Bohn  {Political  Cyclo- 
pcedia),  all  of  which  have  been  mentioned  in  preceding  Notes ;  as  well 
as  Campbell,  Chancellors  (4th  ed.,  London,  1856-57);  Howell,  State 
Trials  (London,  1809-28);  Molesworth,  History  of  England  (London, 
1877);  May,  Constitutional  History  (New  York,  1880);  Taswell-Langmead, 
Constitutional  History  (London,  1880);  Green,  English  People  (New 
York,  1880);  and  the  valuable  article  on  "Marriage"  by  Robertson  in 
the  Encyclopaedia  Britannica,  XV.] 

I.       CEOMWELL'S    civil    marriage   act,    1653 

It  was  not  until  the  middle  of  the  seventeenth  century 
that  the  ideas  of  the  early  German^  Reformation  relating  to 
the  temporal  nature  of  marriage  gained  ascendancy  in  Eng^' 
land,  and  then  only  for  the  brief  period  of  the  Common- 
wealth. Yet  the  civil-marriage  act  of  1653  is  of  extraordinary 
historical  interest,  not  only  as  an  example  of  the  statesman- 
ship of  Cromwell,  so  often  anticipating  the  reforms  of  our  own 
age,  but  especially  as  being  mainly  the  result  of  the  revolt  of 
the  Puritans,  more  particularly  of  the  Independents,  against 
the  unnatural  union  of  church  and  state  produced  by  the  com- 
promise of  the  sixteenth  century,  and  of  their  intense  hatred 
of  the  formalism  and  ceremonial  of  the  "Romanizing"  party 
in  the  established  church.  The  act  is  of  special  significSfeice 
for  our  present  purpose,  since  it  reveals  the  conceptions 
which  shaped  the  matrimonial  laws  of  New  England.  Para- 
doxical as  it  may  at  first  glance  appear,  it  cannot  be  doubted 
that  the  first  establishment  of  obligatory  civil  marriage  in 
England  owes  its  origin  chiefly  to  the  desire  of  an  intensely 
religious  party  to  separate  all  things  worldly  from  the  func- 

iFeiedbeeg,  Eheschliessung,  324;  Webee,  Geschichte  d.  dkathol.  Kirchen  t.  / 
Secten  von  Grossbrittanien  (Leipzig,  1845),  I,  1,  106  fl'. ;  Eichtee,  Geschichte  der 
deutschen  Kirchenverfass,  (Leipzig,  1851) ,  175  £f. 


Rise  of  Civil  Maebiage  409 

tions  of  the  clergy  and  the  church.'  True,  a  foreign  people, 
closely  related  by  blood  and  speech,  with  whom  England 
had  long  had  intimate  relations  and  to  whom  the  Puritans 
were  drawn  through  sympathy  with  their  heroic  resistance 
to  ecclesiastical  oppression,  had  already  provided  a  model, 
which  may  have  had  a  certain  influence.  For  in  the  Nether- 
lands, on  April  1,  1580,  after  the  independence  from  Spain 
had  been  declared,  the  provinces  of  Holland  and  West  Fries- 
land  had  established  a  civil-marriage  form,  permissively  even 
for  the  members  of  the  Reformed  church ;  and  in  principle 
this  was  adopted  by  the  States  General  for  the  United  Prov- 
inces in  1656,  three  years  after  the  appearance  of  the  English 
statute  under  consideration.^ 

Familiar  as  many  Englishmen  probably  were  with  Dutch 
institutions,^  and  close  as  had  been  the  relations  of  Dutch  and 

icy.  Feiedberg,  Geschichte  der  Civilehe,  12;  idem,  Eheschliessung,  322-23; 
Eanke,  Hist.  Eng.  in  nth  Century,  III,  89;  Blackstone,  Commentaries,  I,  440. 

2  By  this  act  the  civil-marriage  form  was  permitted,  but  not  made  obligatory. 
Members  of  the  established  church  might  solemnize  their  marriages  before  their  own 
clergy;  but  the  Lutherans  and  Catholics  were  not  allowed  a  similar  liberty ;  they 
must  put  up  with  the  lay  ceremony  or  accept  the  offices  of  a  Reformed  minister. 
This  law  remained  in  force  until  1795,  when,  under  the  Batavian  Republic,  obligatory 
civil  marriage  was  instituted,  which  is  still  in  force  in  the  kingdom  of  Holland  by  the 
statutes  of  1833:  see  Feiedbeeg,  Geschichte  der  Civilehe,  10-12;  and  his  more  elaborate 
treatment  of  civil  marriage  in  Holland,  Eheschliessung,  478-99. 

3  SiE  William  Beeeeton,  who  visited  the  Netherlands  in  1634-35,  gives  an  inter- 
esting notice  of  the  religious  wedding  service.  "Marriage,"  he  notes,  "likewise 
solemnized  by  the  English  and  Dutch  reformed  churches,  without  the  use  of  the  ring 
or  any  ceremony,  only  an  admonition  precedes,  directing  how  these  married  persons 
should  demean  themselves  each  to  other,  and  for  that  end  those  Scriptures  read 
hereunto  most  pertinent ;  as  also  a  large  discourse  precedes,  touching  the  institution 
of  this  sacred  ordinance,  and  those  texts  hereunto  pertinent  also  read."  He  men- 
tions the  marriage  of  a  couple  "  who  used  the  ring,  and  it  was  as  long  in  solemnizing 
as  our  marriages,  but  I  saw  no  other  ceremony  used  but  the  ring  and  joining  hands; 
after  this  concluded,  all  the  bride's  kindred,  friends  and  acquaintances  that  are 
present,  or  meet  with  her,  kiss  her,  even  in  the  Church,  when  groom  leaves  her,  and 
her  own  friends  bring  her  near  his  house,  when  he  meets,  salutes  her,  and  receives 
her.  Among  the  Lutherans  I  observed  that  they  bowed  always  at  the  name  of  Jesus, 
so  often  as  it  was  used  in  the  solemnity  of  their  marriage,  which  was  very  often." — 
"Travels  in  Holland,  etc.,  1634-5,"  Chetham  Society  Publications,  I,  63,  64.  It  is 
noticeable  that  Sir  William  says  nothing  of  the  civil-marriage  ceremony,  permitted 
in  •  ,  oae  provinces  at  this  time.  Between  1580  and  1656,  in  many  cities,  the  Lutherans 
had  gained  the  right  to  solemnize  marriage  according  to  their  own  rites :  Friedbebg, 
Eheschliessung,  484. 


410  Matrimonial  Institutions 

English  Puritans/  so  important  an  event  as  the  introduction 
of  civil  marriage  can  hardly  be  due  primarily  to  imitation. 
Though  Holland  may  have  provided  a  model,  it  must  be 
essentially  the  product  of  English  religious  history.  Already 
in  the  reign  of  Elizabeth  there  are  signs  of  discontent  with  the 
established  ritual  and  with  the  quasi-sacramental  character 
of  marriage  as  conceived  by  the  Anglican  clergy.  Especially 
obnoxious  to  the  Protestant  non-conformists,  as  appears  from 
the  well-known  controversy  between  Whitgift  and  Thomas 
Cartwright,  leader  of  the  English  Presbyterian  party,  are 
the  use  of  the  ring,  the  "worshipping"  of  the  bride  by  the 
bridegroom,  requiring  the  newly  married  pair  to  partake 
of  the  communion,  and  certain  customs  popularly  connected 
with  the  wedding  celebration,  but  not  enjoined  by  the  liturgy. 
"As  for  matrimony,"  runs  a  passage  in  the  celebrated  Admo- 
nition to  the  Parliament,  published  in  1572,  "that  also  hath 
corruptions,  too  many.  It  was  wont  to  be  counted  a  sacra- 
ment; and  therefore  they  use  yet  a  sacramental  sign,  to 
which  they  attribute  the  virtue  of  wedlock,  I  mean  the 
wedding-ring,  which  they  foully  abuse  and  dally  withal,  in 
taking  it  up  and  laying  it  down :  in  putting  it  on  they  abuse 
the  name  of  the  Trinity,  they  make  the  new-married  man, 
according  to  the  popish  form,  to  make  an  idol  of  his  wife, 
saying  '  with  this  ring  I  thee  wed,  with  my  body  I  thee  wor- 
ship,' etc.  And  because  in  popery  no  holy  action  may  be 
done  without  a  mass,  they  enjoin  the  married  persons  to 
receive  the  communion  (as  they  do  their  bishops  and  priests 
when  they  are  made),  etc.  Other  petty  things  out  of  the 
book  we  speak  not  of,  as  that  women,  contrary  to  the  rule  of 
the  apostle,  come,  and  are  suffered  to  come,  bareheaded,  with 
bagpipes  and  fiddlers  before  them,  to  disturb  the  congrega- 
tion, and  that  they  must  come  in  at  the  great  door  of  the 
church,  else  all  is  marred  [with  divers  other  heathenish  toys 

1  See  Campbell,  The  Puritan  in  Holland,  England,  and  America,  I,  485  ff. 


KiSE  OF  Civil  Marriage  411 

in  sundry  countries,  as  carrying  of  wheat-sheaves  on  their 
heads,  and  casting  of  corn,  with  a  number  of  such  like, 
whereby  they  make  rather  a  May-game  of  marriage  than  a 
holy  institution  of  God]."  * 

In  his  Answer  to  the  Admonition  Whitgift  denies  that  the 
ring  is  looked  upon  as  a  "sacramental  sign,"  and  admits  that 
"it  is  not  material"  whether  it  "be  used  or  not;"  while  he 
quotes  with  approval  Bucer's  opinion^  that  the  "ceremony  is 
very  profitable,  if  the  people  be  made  to  understand  what  is 
thereby  signified,  as  that  the  ring  and  other  things,  first  laid 
upon  the  book,  and  afterward  by  the  minister  given  to  the 
bridegroom  to  be  delivered  to  the  bride,  do  signify  that  we 
ought  to  ofPer  all  that  we  have  to  God  before  we  use  them, 
and  to  acknowledge  that  we  receive  them  at  his  hand  to  be 
used  to  his  glory.  The  putting  of  the  ring  upon  the  fourth 
finger  of  the  woman's  left  hand,  to  which,  as  it  is  said  there 
Cometh  a  sinew  or  string  from  the  heart,  doth  signify  that 
the  heart  of  the  wife  ought  to  be  united  to  her  husband ;  and 
the  roundness  of  the  ring  doth  signify  that  the  wife  ought 
to  be  joined  to  her  husband  with  a  perpetual  band  of  love, 
as  the  ring  itself  is  without  end."  Cartwright  in  his  Reply 
declares  that  "if  it  be  M.  Bucer's  judgment  which  is  alleged 
here  for  the  ring,  I  see  that  sometimes  Homer  sleepeth.  For, 
first  of  all,  I  have  shewed  that  it  is  not  lawful  to  institute 
new  signs  and  sacraments.  And,  then,  it  is  dangerous  to  do 
it,  especially  in  this  which  confirmeth  the  false  and  popish 
opinion  of  a  sacrament."  Next  he  ridicules  Bucer  for  his 
"fond  allegories"  touching  the  ring,  and  thinks  that  having 

I  Admonition,  the  Ninth:  Whitgift,  "Defence  of  the  Answer,"  Works,  III,  335. 

2BuCEE,  Script,  anglic.  basil.,  i577,  Censur.  in  ordinat.  ecclcs.,  c.  xx,  488,  489: 
Whitgift,  Works,  III,  353,  354,  note.  Bucer  is  the  great  Protestant  authority  on 
the  question  of  marriage  and  divorce.  Milton  calls  him  the  "pastor  of  nations" 
(  Works,  III,  285),  and  congratulates  himself  on  having  independently  reached  similar 
conclusions  (ibid.,  282  ff.).  See  especially  Milton's  "Judgment  of  Martin  Bucer 
concerning  Divorce"  (ibid.,  274-314),  being  a  partial  translation  of  the  second  book 
of  Bucee's  De  regno  Christi,  addressed  to  Edward  VI. 


412  Matrimonial  Institutions 

"the  minister  to  preach  upon  these  toys"  savoureth  not  of 
his  learning  and  sharpness  of  judgment.^  Whitgift,  however, 
further  defends  the  practice  on  the  score  of  "convenience" 
and  because  it  is  "void  of  all  manner  of  superstition."^ 
Moreover,  he  sustains  the  requirement  of  communion,  again 
quoting  Bucer  in  its  favor ;  accuses  Cartwright  of  weak  argu- 
ment and  of  trying  to  make  "schism  in  the  church"  by 
bringing  forward  popular  customs,  "mere  trifles"  not  sanc- 
tioned by  the  "book"  which  is  the  real  object  of  his  attack; 
and  rightly  points  out  that  "worship"  implies  not  idolatry, 
since  it  signifies  merely  to  "honor"  and  not  to  "adore" 
according  to  the  more  modern  devotional  sense.^  Indeed,  it 
is  historically  instructive  that  already  in  the  sixteenth  cen- 
tury the  original  meaning  of  "worship"  should  have  passed 
out  of  common  use. 

But  the  attack  of  the  sixteenth-century  reformers  was  not 
directed  solely  against  the  ceremonies  and  phrases  of  the 
marriage  ritual.  A  bold  step  was  taken  toward  civil  mar- 
riage when  resistance  was  made  to  ecclesiastical  jurisdiction 
in  matrimonial  causes  on  the  ground  that  these  belong  to  the 
temporal  judge.  On  this  subject  Cartwright  has  a  charac- 
teristic passage,  disclosing  his  usual  ignorance  of  history  and 
his  confusion  of  mind — of  which  Whitgift  does  not  fail  to 
take  advantage — but  nevertheless  revealing  plainly  enough 
the  new  ideas  which  more  and  more  came  to  the  front  during 
the  Puritan  revolution.  "Another  thing,"  he  says,  "is  that 
in  these  courts  (which  they  call  spiritual)  they  take  the 
knowledge  of  matters  which  are  mere  civil,  thereby  not  only 
perverting  the  order  which  God  hath  appointed  in  severing 
the  civil  causes  from  the  ecclesiastical,  but  justling  also  with 

1  Caetweight's  Reply  to  the  Answer,  in  Whitgift,  Works,  III,  354. 

2  Thus  in  his  "  Defence  of  the  Answer"  (Worlcs,  111,355)  Whitgift  apologizes 
for  the  use  of  the  ring,  seeing  the  "church  hath  thought  it  convenient,"  and  since 
it  is  likewise  "  void  of  all  manner  of  superstition,  necessity  of  salvation,  opinion  of 
worshipping,  and  all  other  circumstances,  that  should  take  away  the  lawfulness  of 
using  it." 

3  Whitgift,  op.  cit..  Ill,  355-57. 


Rise  of  Civil  Marriage  413 

the  civil  magistrate,  and  thrusting  him  from  the  jurisdiction 
which  appertaineth  unto  him,  as  the  causes  of  the  contracts 
of  marriage,  of  divorce,  of  wills  and  testaments,  with  divers 
other  such  like  things.  For,  although  it  appertain  to  the 
church  and  the  gouvernors  thereof  to  shew  out  of  the  word 
of  God  which  is  a  lawful  contract  or  just  cause  of  divorce, 
and  so  forth,  yet  the  judicial  determination  and  definitive 
sentences  of  all  these  do  appertain  unto  the  civil  magistrate. 
Hereunto  may  be  added,  that  all  their  punishments  almost 
are  penalties  of  money,  which  can  by  no  means  appertain  to 
the  church,  but  is  a  thing  merely  civil."  ^ 

So  far  as  England  is  concerned,  to  assign  the  unfortunate 
"severing  the  civil  causes  from  the  ecclesiastical"  under 
William  the  Conqueror  to  the  "order  which  God  hath  ap- 
pointed" may  seem  to  the  historical  student  a  trifle  bold; 
and  Whitgift  may  well  retort,  if  '"it  pertain  to  the  church 
to  declare  what  is  a  lawful  contract,  and  which  be  the  just 
causes  of  divorce,'  by  what  reason  can  you  prove  'that  the 
judicial  determination  and  definitive  sentence  of  those  mat- 
ters doth  pertain  to  the  civil  magistrate  only '  ?  For  is  not 
he  most  meet  to  judge  in  these  causes  which  best  under- 
standeth  them?"  But  Whitgift  himself  undoubtedly  begs 
the  question  when  he  advances  the  counter-statement  that 
the  civil  magistrate  already  has  authority  in  ecclesiastical 
cases,  since  "all  jurisdiction  that  any  court  in  England 
hath  or  doth  exercise,  be  it  civil  or  ecclesiastical,"  is  "exe- 
cuted in  her  majesty's  name  and  right,"  and  comes  "from 
her  as  supreme  governor,"  so  that  in  efiFect  "we"  make  no 
"such  distinction  betwixt  civil  and  ecclesiastical  causes  as  the 
pope  and  you  do;"^  for  this  very  blending  of  church  and 
state  under  the  "defender  of  the  faith"  is  really  the  root  of 
the  whole  matter  in  controversy.  Yet  Cartwright  represents 
a  good  cause,  however  lame  his  defense  of  it  may  be.    Again 

1  Caetwhight's  Reply  to  the  Answer;  p.  150,  sec.  3,  in  Whitgift,  Works,  III,  267. 

2  Whitgift,  "Defence  of  the  Answer,"  Works,  III,  267. 


414:  Matrimonial  Institutions 

returning  to  the  charge,  in  effect  he  attacks  the  notorious 
character'  of  the  spiritual  courts  themselves,  referring  to  the 
"unfitness  of  those  which  are  chief  officers"  in  them;  for 
"the  most"  of  these  officials,  he  affirms,  "are  either  papists, 
or  bribers,  or  drunkards  (I  know  what  I  write),  or  epicures, 
and  such  as  live  of  benefices  and  prebends  in  England  and 
in  Ireland,  doing  nothing  of  those  things  which  appertain 
unto  them."  ^  Dilatory  action  in  matrimonial  causes  was  a 
standing  grievance  against  the  spiritual  courts;  and  many 
"lamentable  complaints  and  petitions"  for  redress,  especially 
in  cases  where  "summary  hearing  and  speedy  relief"  are 
necessary,  were  addressed  to  the  privy  council.  For  this 
reason,  in  1613,  complaints  from  wives  alleging  desertion, 
cruel  treatment,  or  "breach  of  the  bonds  of  holy  wedlock" 
on  the  part  of  their  husbands  were  relegated  to  the  High 
Commission  for  settlement.^ 

1  The  Reformers  charged  that  the  throng  of  greedy  place-hvmters,  attracted  by 
fees  and  emoluments,  corrupted  the  courts  as  well  as  the  entire  ecclesiastical  admin- 
istration of  the  bishops :  see  particularly  Milton's  "  Likeliest  Means  to  remove  Hire- 
lings out  of  the  Church,"  Works,  III,  1-41 :  Sir  Henry  Spelman,  he  says,  "  proves  that 
fees  exacted  or  demanded  for  sacraments,  marriages,  burials,  and  especially  for 
interring,  are  wicked,  accursed,  simoniacal,  and  abominable"  (loc.  cit.,  21).  "Nor 
did  other  abuses  imputed  to  these  obnoxious  jurisdictions  fail  to  provoke  censure, 
such  as  the  unreasonable  fees  of  their  oflBcers,  and  the  usage  of  granting  licenses  and 
commuting  penances  for  money.  The  ecclesiastical  courts  indeed  have  generally 
been  reckoned  more  dilatory,  vexatious,  and  expensive  than  those  of  the  common 
law."— Hallam,  Const.  Hist.,  1, 115;  cf.  454. 

"At  Durham,  at  Lancaster,  and  at  Ely,  the  Bishops  sitting  each  as  a  Pope  in  his 
own  dominions  professed  to  exercise  temporal  as  well  as  spiritual  power,  but  they 
had  in  fact  permitted  gross  abuses  to  corrupt  and  obstruct  the  fountain  of  justice." 
—  Indeewick,  The  Interregnum,  184. 

2Caetweight's  Reply  to  the  Answer,  p.  151,  sec.  1,  in  Whitgift,  Works,  III,  268. 
Whitgift  (ibid.,  269)  rebukes  Cartwright  for  his  "slanderous  and  opprobrious 
speeches."  Cf.  the  further  discussion  of  the  question  of  spiritual  jurisdiction  in 
matrimonial  causes  in  Whitgift,  loc.  cit.,  543-46,  where  Cartwright  quotes  Beza, 
Calvin,  and  Peter  Martyr  in  his  favor. 

In  convocation,  1580,  proposals  were  made  to  reform  the  ecclesiastical  courts, 
but  nothing  was  done.  Again  in  1594  a  commission  to  inquire  into  abuses  was 
appointed:  Hallam,  Const.  Hist.,  I,  215  n.  1;  Steype's  Grindal,  259,  App.,  97;  and 
Steype's  Whitgift,  419. 

3  See  sees,  xx-xxii  of  the  commission  of  James  I.  to  the  High  Commission,  in 
Peotheeo's  Statutes  and  Const.  Docs.,  431-33.  The  signers  of  the  "Millenary  Peti- 
tion," 1603,  likewise  pray  for  the  restraint  of  the  "  longsomeness  of  suits  in  ecclesi- 
astical courts  (which  hang  sometimes  two,  three,  four,  five,  six,  or  seven  years)": 
Peotheeo,  op.  cit.,  415. 


Rise  of  Civil  Marriage  415 

But  adding  to  the  powers  of  the  "Ecclesiastical  Star 
Chamber"  would  scarcely  be  regarded  by  the  Puritans  as 
even  a  satisfactory  palliation  for  such  a  grievance.  The 
policy  of  the  Stuarts  tended  swiftly  to  mold  their  opinions 
into  organized  resistance ;  and  the  marriage  question  became 
at  last  one  of  the  cardinal  issues  in  the  reform  program. 
Thus  in  the  "Millenary  Petition"  of  1603  the  Puritan 
ministers,  while  objecting  to  the  "cross  in  baptism,"  the 
"cap  and  surplice,"  profanation  of  the  Lord's  day,  "double- 
beneficed  men,"  "popish  opinions,"  and  "longsomeness  of 
service,"  pray  also  for  the  reversal  of  "divers  popish  canons," 
such  "as  the  restraint  of  marriage  at  certain  times;"  for 
greater  caution  in  granting  "licenses  for  marriage  without 
banns;"  and  for  the  correction  of  "divers  terms  of  priests 
and  absolution  and  some  other  used,  with  the  ring  in  mar- 
riage, and  other  such  like  in  the  book."'  On  the  other 
hand,  if  the  Puritan  loathed  the  so-called  "popish"  tend- 
encies of  the  established  church,  as  these  became  more  and 
more  pronounced  under  the  rule  of  Laud,  both  the  Puritan 
and  the  Anglican  united  in  merciless  persecution  of  the 
adherents  of  Rome.  The  act  of  1606,  "to  prevent  and 
avoid  dangers  which  may  grow  by  Popish  recusants,"  is  one 
of  the  most  barbarous  of  those  which  for  ages  disgraced  the 
English  statute  book.  By  this  law  a  "popish  recusant 
convict,"  or  a  man  whose  wife  alone  is  convicted  of  recu- 
sancy, is  forbidden  to  "exercise  any  public  office  in  the 
commonwealth,"  except  "such  husband  himself  and  his 
children  ....  above  the  age  of  nine  years  abiding  with 
him  and  his  servants  in  household  shall  once  every  month 
at  the  least,  not  having  any  reasonable  excuse  to  the 
contrary,  repair  to  some  church  or  chapel"  of  the  establish- 
ment and  "there  hear  divine  service;"  and  unless,  with  his 
children  and  servants  of  meet  age,  he  receives  the  sacrament 

1 /bid.,  414,415. 


416  Matrimonial  Institutions 

of  the  Lord's  Supper  when  required  by  law,  and  "bring  up 
his  children  in  the  true  religion."  Every  married  woman 
convicted  of  recusancy,  her  husband  not  being  so  convicted, 
who  shall  not  "conform  herself  ....  by  the  space  of  one 
whole  year  next  before  the  death  of  her  said  husband,  shall 
forfeit  to  the  King's  Majesty  ....  the  issues  and  profits  of 
two  parts  of  her  jointure  and  two  parts  of  her  dower,  .... 
and  also  be  disabled  to  be  executrix  or  administratrix"  of 
her  husband,  "and  to  have  ....  any  part  of  his  goods 
and  chattels."  Any  child'  sent  abroad  without  the  king's 
license,  to  prevent  his  "good  education  in  England  or  for 
any  other  cause,"  may  have  "no  benefit  by  any  gift,  con- 
veyance, descent,  devise  or  otherwise  of  any  lands  .... 
goods  or  chattels,"  until  he  reach  the  age  of  eighteen  or 
more,  when,  as  a  condition  of  recovering  his  property,  he 
must  take  an  iron-clad  oath  of  allegiance^  and  partake  of 
the  sacrament.  In  the  meantime — and  here  a  broad  way 
was  opened  up  for  fraud  and  wickedness — all  the  rights 
mentioned  are  to  pass  to  the  "next  of  kin  which  shall  be  no 
Popish  recusant."  Moreover,  this  infamous  statute  imposes 
harsh  penalties  upon  every  recusant  who  shall  hereafter  be 
"married  otherwise  than  according  to  the  orders  of  the  Church 
of  England  by  a  minister  lawfully  authorized."  The  man  is 
"utterly  disabled  to  have  any  estate  of  freehold  in  any  the 
lands  ....  of  his  wife  as  a  tenant  by  curtesy  of  England," 
or  in  case  she  have  no  lands  he  must  forfeit  a  hundred  pounds. 
The  woman  is  not  only  disabled  from  claiming  her  dower  or 
jointure,  but  is  also  denied  her  "widow's  estate  and  frank- 
bank  in  any  customary  lands  whereof  her  husband  died 
seized,"  as  well  as  any  part  of  her  husband's  goods  "by 
virtue  of  any  custom."     Should  a  child  be  born  to  them,  it 

1  Unless  the  child  be  a  soldier,  mariner,  merchant,  or  a  merchant's  apprentice 
or  factor. 

2 Prescribed  by  3  and  4  James  I.:  Peotheeo,  op.  cit.,  259;  Statutes  at  Large, 
II,  653. 


Rise  of  Civil  Marriage  417 

must  within  a  month  be  baptized  in  open  church  according 
to  Anglican  rites,  under  penalty  of  one  hundred  pounds  for 
refusal.'  In  all  other  essential  features  during  the  first  two 
Stuart  reigns  the  law  of  espousals  and  marriage  remained 
the  same  as  during  the  age  of  Elizabeth.^  After  Laud 
gained  control  there  was  a  strong  tendency  to  accent  those 
parts  of  the  nuptial  ceremonial  which  gave  offense  to  the 
Puritans.'  The  civil  war  brought  all  this  to  an  end;  and 
"on  January  3,  1644^5,  a  few  days  before  the  execution  of 
Archbishop  Laud,  the  Directory  was  by  a  solemn  ordinance 
substituted  for  the  Book  of  Common  Prayer."  But  the 
form  prescribed  in  the  latter  remained  valid,  "although  the 
celebrant  was  liable  to  a  fine  of  <£5  for  not  using  the  form 
inserted  in  the  Directory  of  Public  Worship.  Still  many 
people  clung  to  the  ancient  service,  and  amongst  others 
Stephen  Marshall  the  Preacher,  who  had  a  chief  hand  in 
compiling  the  Directory,  deliberately  made  use  of  the  Prayer 
Book  in  marrying  his  own  daughter,  when  he  paid  down  to 
the  churchwardens  the  legal  fine  which  he  had  incurred."* 

13  and  4  James  I.,  c.  v:  Pkotheeo,  op.  cit.,  262-68;  Statutes  at  Large,  II,  656-62. 

2  For  a  concise  and  accurate  account  of  the  law  of  marriage  as  it  stood  under 
Charles  I.  see  The  Lawes  Resolutions  of  Womens  Rights  (London,  1632),  51-115,  231  ff. 
Marriages  on  account  of  disparitas  cultv^  were  prohibited.  "Amongst  the  hin- 
derances  of  marriage  note  this  also,  that  by  Constitution  of  holy  Church,  marriage  is 
forbidden  betwixt  persons  of  divers  Religions,  as  Jews  and  Christian  "  (59).  It  does 
not  appear,  however,  that  such  unions  were  invalid;  nor  is  anything  said  of 
"mixed"  marriages.  There  was  no  action,  as  in  Germany,  to  compel  the  fulfilment 
of  the  sponsalia  (54). 

3  Caedwell,  Documentary  Annals,  II,  200-207,  gives  Bishop  Wren's  "  Orders  and 
Directions  "  for  the  diocese  of  Norwich,  1636 : 

"  XI.  That  they  go  up  to  the  holy  table  at  marriages  at  such  time  thereof  as  the 
rubric  so  directeth,  and  that  the  new  married  persons  do  kneel  without  the  rail,  and 
do  at  their  own  charge,  if  the  communion  were  not  warned  the  Sunday  before, 
receive  the  holy  communion  that  day,  or  else  to  be  presented  by  the  minister  and 
churchwardens  at  the  next  generals  for  not  receiving. 

"  XII.  That  no  minister  presume  to  marry  any  persons,  whereof  one  of  the 
parties  is  not  of  his  parish,  unless  it  be  otherwise  expressly  mentioned  in  the  license ; 
nor  that  he  marry  any  by  virtue  of  any  faculties  or  license,  wherein  the  authority  of 
an  archdeacon  or  oflBcial  is  mentioned,  sub  poena  suspensionis." 

*  Waters,  Parish  Registers  in  England,  11, 16.  Cf.  Lathbuey,  Hist,  of  the  Book 
of  Common  Prayer,  310,  and  the  authorities  there  cited.  Jeaffreson,  Brides  and 
Bridals,  II,  69,  gives  the  form  of  marriage  contract  prescribed  by  the  Directory. 


418  Matrimonial  Institutions 


> 


With  the  triumph  of  Cromwell  the  hour  had  come  for 
realization  of  the  new  ideals.  The  act  of  1653,  though 
marking  the  end  of  a  century  of  religious  controversy  in 
which  not  a  little  of  bigotry  and  fanaticism  on  both  sides  is 
mingled,  and  though  passed  by  the  much-abused  "  Barebone's 
Parliament,"'  is  nevertheless  a  measure  wise  and  clear, 
resting  on  principles  which  two  centuries  and  a  half  of 
subsequent  history  have  fully  sanctioned.  For,  like  so 
much  of  the  legislation  and  experimentation  of  the  period, 
it  is  anticipatory  of  the  best  reforms  of  the  present  age. 
With  remarkable  clearness  and  brevity,  but  with  adequate 
fulness  of  detail,  the  form  of  celebration,  the  exercise  of 
matrimonial  jurisdiction,  and  the  machinery  of  administra- 
tion are  provided  for.^ 

An  obligatory  civil  ceremony  before  a  justice  of  the  peace 
is  prescribed.  After  due  publication  of  banns,  with  a  proper 
certificate  thereof  obtained  from  the  parish  register,  the  per- 
sons to  be  married  are  to  come  before  "some  justice  of  peace 
within  and  of  the  same  county,  city,  or  town  corporate" 
where  publication  was  made.  If  either  of  them  is  under  the 
age  of  twenty -one,  "sufficient  proof  of  the  consent  of  their 
parents  or  guardians"  must  be  presented.  The  magistrate 
is  required  to  "  examine  by  witness  upon  oath,  or  otherwise 
....  concerning  the  truth  of  the  certificate,  and  due  per- 
formance of  all  the  premises;"  and  he  is  also  to  take  cogni- 
zance of  any  "exceptions"  to  the  marriage  "made  or 
arising."     If  "no  reasonable  cause  to  the  contrary"  appear, 

iFor  a  fair  estimate  of  the  character  of  the  "Barebone's  Parliament,"  see 
Indehwick,  The  Interregnnm,  15-17 ;  Jenks,  Const.  Experiments,  69-75. 

2  This  marriage  act  of  August  24,  1653,  is  contained  in  Scobell's  Acts  and 
Ordinances  of  Parliament,  236-38,  though,  to  the  disgust  of  the  historical  student, 
not  in  any  of  the  various  editions  of  the  Statutes.  I  have  here  used  a  copy  of 
the  act  contained  in  a  contemporary  newspaper  entitled  Several  Proceedings  of 
Parliament,  from  Tuesday  the  twenty-third  of  August,  to  Tuesday  the  thirtieth  of 
August,  1653,  found  in  the  fine  collection  of  seventeenth-century  pamphlets  in  the 
Sutro  Library,  San  Francisco.  An  inaccurate  copy  of  the  principal  provisions  of  the 
act  is  given  by  Bden,  Parish  Registers,  26-29;  and  there  is  a  good  summary  in  Feied- 
BEKG,  Eheschliessung,  322,  323.  On  this  act  and  the  views  of  the  Independents  see 
Cook,  "  The  Marriage  Celebration  in  Europe,"  Atlantic  Monthly,  LXI,  255-57. 


Rise  of  Civil  Marriage  419V 

"the  marriage  shall  proceed  in  this  manner:  The  man  to  be 
married,  taking  the  woman  to  be  married  by  the  hand,  shall 
plainly  and  distinctly  pronounce  these  words: 

'I  A.  B.  do  here  in  the  presence  of  God  the  Searcher  of 
all  Hearts,  take  thee  C.  D.  for  my  wedded  wife ;  and  do  also 
in  the  presence  of  God,  and  before  these  witnesses,  promise 
to  be  unto  thee  a  Loving  and  Faithful  Husband.'"  The 
woman  in  like  manner  taking  the  man  by  the  hand  accepts 
him  for  her  husband,  promising  to  be  his  "Loving,  Faithful, 
and  Obedient  Wife." 

The  ceremony  thus  consists  merely  in  the  expression 
of  mutual  consent,  accompanied  by  the  interlocking  of 
hands,  the  old  handfasting;  but  the  use  of  the  ring  is  not 
permitted.^  All  legal  requirements  being  satisfied,  the  jus- 
tice pronounces  the  parties  husband  and  wife;  and  their 
simple  declaration,  as  above  given,  is  to  be  taken  "as  to 
the  form  of  marriage"  to  be  "good  and  effective  in  law; 
and  no  other  marriage  whatsoever  within  the  Common- 
wealth," after  September  29,  1653,  "shall  be  held  or  ac- 
compted  a  marriage  according  to  the  Laws  of  England."^ 

iHence  the  ridicule  of  Butlee,  Hudibras,  Part  III,  c.  2, 303-10  (Boston,  1864),  II,  18 : 
"  Others  -were  for  abolishing 
That  tool  of  matrimony,  a  ring. 
With  which  th'  unsanctify'd  bridegroom 
Is  marry'd  only  to  a  thumb 
(As  wise  as  ringing  of  a  pig. 
That  us'd  to  break  up  ground  and  dig), 
The  bride  to  nothing  but  her  will, 
That  nulls  the  after-marriage  still." 

2  Cf.  Fkiedbeeg,  Eheschliessung,  322,  330.  After  the  restriction  was  removed  in 
1656,  marriages  were  frequently  solemnized  before  the  mayor  and  the  minister  of  the 
parish  jointly:  Burn,  Parish  Registers,  162, 163,  note;  Waters,  Parish  Registers  in 
England,  16.  In  1658,  according  to  the  register  of  St.  Giles  in  the  Fields,  a  marriage 
was  celebrated  by  William  Jervis,  D.D.,  before  witnesses,  and  then  follows  this 
entry:  "That  also  the  sd.  marriage  ....  hath  its  consummation  before  John  Lord 
Berksted,  Lord  Lieutenant  of  the  Tower  of  London"  according  to  the  act  of  parlia- 
ment, and  before  Sir  Jno.  Sedley  of  the  county  of  Kent.  Apparently  this  was  a 
double  celebration:  Notes  and  Queries,  3d  Series,  I,  228.  For  this  case  see  also 
Jeapfeeson,  Brides  and  Bridals,  II,  71,  who  afllrms  that  usually  the  "wedding  was 
religiously  solemnized  in  church,  after  or  before  the  performance  of  the  purely  civil 
affirmation  in  the  magistrate's  parlour,  ....  in  accordance  with  the  instructions  of 
the  ' Directory  of  Public  Worship;' "  and  it  seems  that  the  celebration  was  some- 
times conducted  according  to  the  Book  of  Common  Prayer :  Lathbury,  Hist,  of  the 
Book  of  Common  Prayer,  310. 


1/ 


420  Matrimonial  Institutions 

But  this  restriction  was  omitted  when  the  act  was  confirmed 
in  1656.' 

In  thorough  harmony  with  the  doctrine  that  marriage  is 
a  "worldly  thing"  is  the  provision  of  this  act  depriving  the 
clergy  of  jurisdiction  in  matrimonial  causes  and  placing  it  in 
the  hands  of  the  justices  of  the  peace.  It  is  provided  that 
all  "matters  and  controversies  touching  contracts  and  mar- 
riages, and  the  lawfulness  and  unlawfulness  thereof;  and 
all  exceptions  against  contracts  and  marriages,  and  the  dis- 
tribution of  forfeiture  within  this  act,  shall  be  in  the  power, 
and  referred  to  the  determination  of  the  justices  of  peace 
in  each  county,  city,  or  town  corporate,  at  the  general  quarter 
sessions,"  or  to  such  "other  persons"  as  the  "parliament 
shall  hereafter  appoint."  All  offenses  against  the  act  com- 
mitted on  or  beyond  the  sea  are  in  like  manner  to  be  tried  in 
the  places  where  the  offenders  are  taken.  Jurisdiction  in 
cases  of  divorce  is  not,  however,  mentioned  in  this  act ;  nor 
was  any  provision  made  for  the  trial  of  such  causes  during 
the  Commonwealth.  Indeed,  a  strong  religious  prejudice 
still  survived  against  divorce,  even  among  the  Independents. 
"Thus,"  says  Mr.  Inderwick,  "while  on  the  one  hand  they 
treated  marriage  as  a  civil  contract,  on  the  other  they  gave 
to  it  all  the  inviolability  of  a  sacrament,  an  inconsistency 
which  is,  however,  to  be  found  in  many  other  acts  of  this 
period.  The  Jewish  law,  to  which  they  much  adhered,  pro- 
vided for  and  regulated  divorces.  They  were  recognized  by 
most  Protestant  communities,  and  Milton,  oppressed  by  his 
own  domestic  difficulties,  had  written  powerfully  on  the  sub- 
ject, but  through  all  the  minutes  of  the  various  parliaments 
and  councils  of  state  I  find,  what  I  conceive  to  be  somewhat 
surprising,  no  trace  of  any  proposal  to  introduce  into  Eng- 
land any  system  of  divorce.     And,  indeed,  the  prejudice 

1  ScOBELL,  Acts  and  Ordinances,  1656,  c.  10,  p.  394.  Cf.  also  Bubn,  Parish  Regis- 
ters, 29.  In  1658  it  was  permitted  to  use  the  "accustomed  religious  rites"  if  the 
parties  preferred :  Wood,  The  Wedding  Day,  279. 


Rise  of  Civil  Marriage  421 

against  divorce  appears  to  have  been  so  strong  that  the  laxity 
of  the  Jews  in  this  respect  was  found  in  1()55  to  be  one  of 
the  strongest  arguments  against  their  proposed  admission  to 
the  rights  of  citizenship."'  Nor  is  there  any  clear  provision 
for  the  determination  of  cases  of  separation  and  alimony ; 
although  the  consistory  and  other  ecclesiastical  courts  having 
been  abolished,  these  questions  in  practice  were  managed  by 
"delegates  appointed  by  the  Commissioners  of  the  Great 
SeaP  or  by  justices  of  the  peace  in  quarter  sessions — a  course 
which  would  seem  to  have  been  the  reasonable  outcome"  of 
the  civil  marriage  act.^  On  similar  grounds  the  county 
justices  probably  dealt  with  "matrimonial  squabbles,"  though 
in  one  case  at  least  the  intervention  of  the  Council  of  State 
was  sought.* 

On  the  other  hand,  the  act  of  1653  grants  authority  to 
the  justices  in  cases  of  the  marriage  of  minors  through  fraud 
or  forcible  abduction.  According  to  Inderwick,  the  attempt 
to  check  this  abuse  was  entirely  novel.  The  Commonwealth, 
he  says,  "interfered  in  a  manner"  hitherto  unknown  for  the 

1  Indeewick,  The  Interregnum,  46. 

2  The  act  of  1650,  c.  43:  Scobell,  Acts  and  Ordinances,  150, 151,  contains  a  general 
provision  for  such  a  commission  in  cases  of  pretended  marriages. 

3  Inderwick,  op.  cit.,  183, 184. 

*See  the  case  of  "John  Buck  and  Mary  his  wife"  in  Indeewick,  op.  cit.,  183. 
That  the  justices  took  a  hand  in  these  cases  appears  to  be  a  reasonable  conjecture. 

5  Something  had,  however,  been  done  to  check  this  evil  by  Tudor  legislation. 
The  act  of  3  H.  VII.,  c.  2,  Statutes  at  Large  (Ruffhead),  II,  69,  provides  that  if  any- 
one take  away  against  her  will  any  woman,  whether  maid,  widow,  or  wife,  "  having 
substances,  some  in  Goods  moveable,  and  some  in  Lands  and  Tenements,  and  some 
being  Heirs  apparent  unto  their  ancestors,"  and  marry  her  or  cause  her  to  bo  married 
or  deflowered,  or  in  any  way  aid  or  abet  the  same,  he  shall  be  guilty  of  felony ;  and 
the  act  of  39  Elizabeth,  c.  9,  Statutes  at  Large,  II,  689.  deprives  such  offenders  of 
benefit  of  clergy.  Again  by  4  and  5  Philip  and  Mary,  c.  8,  Statutes  at  Large,  II,  515, 
the  abduction  of  a  maid  under  sixteen  is  punishable  by  two  years'  imprisonment  or 
a  fine  to  be  fixed  by  the  Star  Chamber;  while  the  taking  away  and  marrying  or  de- 
flowering any  woman  child  under  that  age  is  punishable  with  five  years'  imprison- 
ment or  a  fine  as  in  the  first  case.  For  these  and  the  earlier  statutes  regarding  rape 
see  The  Lawes  Resolutions  of  Womens  Rights,  376-90. 

These  acts,  it  should  be  noted,  are  quite  restricted  in  their  range  and  besides, 
by  1653,  they  seem  to  have  become  practically  a  dead  letter;  although  in  1753  Attor- 
ney General  Ryder  declares  they  are  still  in  force  :  Hansaed,  Parliamentary  History, 
XV,  3-5;  and  so  does  the  act  of  1650,  c.  43:  ScobelIi,  Acts  and  Ordinances,  151.    On 


422  Matrimonial  Institutions 

protection  of  women  from  those  forcible  abductions  and  mar- 
riages which  were  but  too  common  under  the  former  and 
later  reigns  of  the  Stuarts.  Fraudulent  marriages,  induced 
by  needy  men  or  intriguing  women,  formed  the  common 
staple  of  the  plays  and  interludes  which  the  puritans  so 
heartily  condemned.  In  these  comedies,  while  the  unhappy 
father  or  deluded  guardian  was  not  infrequently  the  subject 
of  mirth  or  of  contempt,  the  lucky  intriguer  was  made  the 
hero  of  the  play.  From  this  species  of  offense,  carried  from 
the  play-house  into  private  life,'  the  middle  class  peculiarly 
suffered,  and  while  the  wealthy  merchant  or  the  prosperous 
tradesman  had  to  endure  as  best  he  might  the  entrapping  of 
his  daughter  or  the  abduction  of  his  ward,  the  gay  cavalier 
or  dashing  spark  who  carried  her  off  was  the  lion  of  the  hour. 
Of  this  phase  of  society  the  puritan  party  had  long  and 
loudly  proclaimed  their  horror  and  detestation,  and  the 
Commonwealth  was  not  long  installed  before  an  occasion 
arose  which  enabled  them  to  give  practical  effect  to  their 
expressed  opinions."  This  was  the  case  of  the  forcible 
abduction  of  Jane  Pickering, "  who  was  the  only  daughter  and 
heiress  of  Sir  Thomas  Pickering,  knight  and  baronet, 
deceased."  While  "walking  in  Greenwich  Park  with  her 
maids  in  October  of  1649,  she  was  seized  by  one  Joseph 
Walsh  and  his  companions"  and  transported  to  Flanders; 
"after  which  Walsh  asserted  a  marriage  to  have  taken  place 
between  them  and  was  prepared  to  claim  his  pecuniary  rights 

the  other  hand,  the  act  of  the  Commonwealth  applies  to  all  minors  under  twenty- 
one,  men  or  women,  whether  heirs  or  possessors  of  property  or  not ;  the  penalties  were 
severe ;  and  the  fraudulent  or  forcible  marriage  is  void. 

1  The  MSS.  of  the  Duke  of  Northumberland  in  Reports  of  the  Hist.  Manuscript 
Commission,  III,  55,  59,  61,  show  entry  before  the  Star  Chamber  of  three  such  cases: 
On  June  3,  1608,  "Atty  Gen.  v.  Thos.  Mollineux,  Riot  and  other  Misdemeanors  in 
marriage  of  daughter  of  Mr.  Brooke  against  his  will."  Feb.  5, 1611-12,  "Atty  Gen.  v. 
Humphry  and  Margaret  Chatterton  et  al.  Conspiring  to  deceive  Lord  Cavendish 
of  his  son,  Sir  William,  aged  14,  and  King  of  his  Wardship.  Supposed  contract  of 
marriage  between  Sir  William  Cavendish  and  Margaret  Chatterton,  a  waiting 
maid."  Jan.  1612-13,  "  Elizabeth  de  la  Fountaine,  widow,  u.  Stephen  Harvie  et  al. 
Practicing  to  steal  away  and  marry  plaintiff's  daughter,  aged  8." 


Rise  of  Civil  Maeriage  423 

as  her  husband."  The  Council  of  State  took  speedy  action. 
The  lady  was  eventually  brought  back  to  England.  Under 
authority  of  an  act  of  Parliament,'  the  case  was  tried  in  1G51 
by  a  special  court  consisting  of  delegates  appointed  by  the 
Lords  Commissioners  of  the  Great  Seal;  "and  it  is  to  be 
presumed  that  she  had  judgment  in  her  favour,  and  her  mar- 
riage set  aside;"  for  subsequently  an  "indictment  of  felony 
was  found  against  Walsh  and  his  companions."^  Accord- 
ingly the  marriage  act  declares  that  if  anyone  by  violence 
or  fraud  steal  or  cause  to  be  stolen  any  person  under  the 
age  of  twenty-one  years,  "with  intent  to  marry  the  said  per- 
son," the  offender  shall  forfeit  his  whole  estate,  one-half  to 
the  Commonwealth  and  one-half  to  the  aggrieved,  and  besides 
"suffer  strict  and  close  imprisonment,  and  be  kept  to  hard 
labor  ....  during  life."  Severe  punishment  likewise  is 
prescribed  for  those  aiding  or  abetting  the  crime;  and  any 
guardian  or  overseer  who  shall  abuse  his  trust  "by  seducing, 
selling,  or  otherwise  wilfully"  promoting  the  marriage  of  his 
ward  with  another  without  such  ward's  free  consent  "shall 
forfeit  double  the  portion  which  of  right"  belongs  to  the  child.^ 
The  change  in  matrimonial  jurisdiction  effected  by  this 
measure  of  the  Commonwealth  has  a  twofold  significance. 
Not  only  is  judicial  authority  thus  vested  in  civil  rather  than 
spiritual  tribunals;  but  it  is  placed  in  the  hands  of  local 
judges.  It  is  an  illustration  of  the  democratic  or  decentral- 
izing tendency  which  marks  the  legislation  of  the  seventeenth - 
century  Puritans  on  both  sides  of  the  Atlantic.  It  was, 
moreover,  natural  that  the  county  magistrates  should  be 
vested  with  these  new  functions.     In  the  exercise  of  their 

iThe  act  (1650,  c.  43)  in  Scobell's  Acts  and  Ordinances,  150, 151. 

2INDEEWICK,  op.  cit.,  40-43:  citing  State  Papers,  1649-50;  and  Whitelock,  op. 
cit.  III,  293,  319. 

3  For  examples  of  marriages  annulled  by  the  quarter  sessions  under  this  act  see 
Jeaffeeson,  Middlesex  Ccninty  Records,  III,  233,  234,  264 ;  also  Indeewick,  op.  cit., 
43.45. 


424  Matrimonial  Institutions 

general  peace  authority  they  had  already  performed  duties 
not  wholly  dissimilar  to  some  of  those  called  for  under  the 
act.  In  certain  instances,  before  as  well  as  after  the  reign 
of  Cromwell,  one  may  be  surprised  to  find  the  justices  exer- 
cising a  sort  of  jurisdiction  in  cases  of  alleged  breach  of 
promise.  "Forasmuch,"  declare  the  magistrates  of  Devon 
in  1626,  "as  it  hath  apeared  unto  this  court  that  Bridget 
Howsley  of  Langton,  spinster,  liveth  idly  and  lewdly  at  home, 
not  betaking  herself  to  any  honest  course  of  life,  and  hath 
lately  falsely  and  scandalously  accused"  a  certain  man  of 
Honiton,  "challenging  a  promise  of  marriage  from  him, 
which  tended  much  to  his  disgrace,  and  that  she  is  a  con- 
tinual brawler  and  sower  of  strife  and  debate  between  neigh- 
bors;" therefore  it  is  ordered  that  the  said  Bridget  "be 
forthwith  committed  to  the  House  of  Correction  there  to  be  set 
on  work  and  remain  for  the  space  of  six  whole  months,"  and 
thereafter  until  she  find  good  sureties  or  a  "master  that  will 
take  her  into  service." '  Here  the  justices  may  have  acted 
merely  as  peace  officers,  though  it  is  plain  that  as  a  prece- 
dent their  sentence  is  far-reaching  in  its  consequences.  As 
late  as  1835  we  find  the  magistrates  at  Exeter,  following  the 
principle  of  the  Roman  law,  "obliging  a  faithless  swain  to 
return  a  damsel's  watch,  and  the  latter  to  return  half  the 
value  of  a  broach"  which  he  had  given  her.^ 

In  no  respect  is  the  essential  "modernness"  of  Crom- 
well's marriage  act  more  strikingly  shown  than  in  its  pro- 
visions to  secure  publicity,  with  a  safe  and  perfect  record. 
Nothing  so  wise  and  practical  in  this  regard  was  again  seen 
in  England  until  the  law  of  1836.  It  is  provided  that  in 
each  parish  a  register  of  marriages,  births,  and  deaths  shall 

1  Roberts,  The  Social  History  of  the  People  of  the  Southern  Counties  of  England 
in  past  Centuries  (London,  1856),  204,  205. 

2BuEN,  Parish  Registers,  140  n.  1.  By  the  code  of  Theodosius,  already  cited 
(above,  p.  295),  when  the  betrothal  was  sealed  with  a  kiss,  the  lover  received  one-half 
of  the  gifts ;  but  the  woman,  "  whether  kissing  or  not  kissing,  whatsoever  she  gave, 
she  may  ask  and  have  it  again":  ibid.,  140.  Compare  The  Laives  Resolutions  of 
Womens  Rights,  71,  72  (on  "  Wooing  "  and  the  "  Condiments  of  Love  ") . 


KisE  OF  Civil  Marriage  425 

be  elected  for  three  years  by  the  contributors  to  the  poor 
rate.  The  register  is  to  be  an  "able  and  honest  person," 
such  "as  shall  be  sworn  and  approved"  by  a  justice  of  the  / 

peace,  who  is  to  enter  the  fact  of  election  and  qualification 
in  the  register  book  of  the  parish;'  and  he  is  removable 
either  by  the  justice  or  by  the  parish  with  the  justice's 
consent.  A  "Book  of  good  Vellum  or  Parchment"  is  to  be 
provided  by  each  parish,  in  which  it  is  the  duty  of  the 
register  to  enter  all  marriages,  births,  and  burials  of  "all 
sorts  of  people."* 

Careful  provision  is  also  made  for  the  publication  of 
banns.  All  marriages  must  be  announced  either  for  three 
successive  Sundays  in  church,  or  at  the  pleasure  of  the 
parties,  during  the  same  interval,  in  the  market-place* 
"next  to  the  said  church  or  chappel."  Before  the  publi- 
cation the  parties  must  file  with  the  register  a  written  state- 
ment of  their  names  and  places  of  residence,  together  with 
those  of  their  parents  or  guardians;  and  these  facts  are 
then  included  in  the  notice.  The  register  also  enters  the 
fact  of  publication  and  all  objections  brought  forward 
against  the  marriage,  with  the  names  of  those  objecting. 
After  publication  the  persons  to  be  married  are  to  obtain 

1  The  following  is  a  specimen  of  such  entry  by  a  justice,  taken  from  the  parish 
register  of  Shudy  Camps,  in  Cambridgeshire  (Bden,  op.  cit.,  26) : 

"  Cambsh. —  These  are  to  certifie  all  whom  it  may  concern  yt  Jno  Wignald  Gierke 
(being  elected  Register  of  ye  parish  of  Shudy  Camps  by  ye  Inhabit's.  of  ye  same  Parish 
as  hath  appear'd  unto  me  by  a  Certificate  under  ye  hands  of  ye  Inhabitants  thereof) 
did  come  before  me  Tho.  Benett  Esqf.  one  of  ye  Justices  for  ye  peace  of  ye  sd  Countie 
and  did  take  his  oath  for  ye  due  Execution  of  his  office  ace?  to  ye  late  Act  of 
Parliamt  in  yt  case  made  and  provided.  Which  s^  John  Wignald  I  do  hereby  con- 
stitute Register  thereof.  Accordingly  witness  my  hand  and  seal  this  10  of  Jan.  1653. 
Tho.  Benett." 

For  similar  certificates  see  Stavert,  Parish  Register  of  Burnsall-in-Craven,  88; 
CowPEE,  The  Booke  of  Register  of  the  Parish  of  St.  Peter  in  Canterbury,  89;  and 
Watees,  Parish  Registers  in  England,  14. 

2  The  fees  for  registration  authorized  are  for  each  marriage  12d. ;  publication 
and  certificate  of  marriage,  12d. ;  each  birth  or  death,  4d. ;  and  no  charge  in  case  of 
persons  living  by  alms. 

3  The  parish  register  of  Boston,  Lincolnshire,  shows  "that  during  the  years  1656, 
1657,  and  1658  respectively  the  number  of  marriages  proclaimed  in  the  market-place 
were  102, 104,  and  108,  and  of  those  announced  in  the  church,  48,  31,  52."— Wood,  Tlie 
Wedding  Day,  278,  279. 


426  Matrimonial  Institutions 

the  register's  certificate  of  the  fact  and  proceed  to  a  justice 
of  the  peace.  As  already  seen,  they  must  also  find  witnesses, 
give  evidence  of  the  consent  of  parents  or  guardians,  and 
cause  to  be  confirmed  by  oath,  or  otherwise  in  the  discretion 
of  the  magistrate,  the  genuineness  of  the  certificate.  After 
the  ceremony,  if  desired  by  the  parties,  the  officiating  justice 
is  required  to  give  them  a  certificate  of  the  solemnization 
properly  signed  by  himself  and  the  witnesses;  and  this 
certificate,  if  produced,  shall  be  recorded  by  the  clerk  of  the 
peace  in  each  county  in  a  book  of  parchment  provided  for  the 
purpose.'  The  register  of  the  parish  is  to  "attend  the  said 
justice"  to  "subscribe  the  entry  of  every  such  marriage." 

Nor  did  the  system  so  well  planned  exist  merely  upon 
paper.  The  plain  men  chosen  to  the  office  of  register  did 
their  work  well,  though  they  were  sneered  at  as  "mere 
laymen,"  and  though  they  sometimes  substitute  rather  harsh 
English  for  the  worse  Latin  of  their  clerical  predecessors. 
Greater  publicity  and  more  orderly  records  were  secured 
during  the  Commonwealth  than  existed  before  it  or  after 
the  Restoration.  "It  has  been  frequently  asserted  by 
writers  on  this  subject,"  remarks  Burn,  a  thoroughly  com- 
petent judge,  "that  the  registers  during  the  time  of  Oliver 
Cromwell,  were  very  badly  kept;"  but,  on  the  contrary, 
"they  were  unusually  well  kept"  where  "a  lay  register  was 
appointed  according  to  the  act  of  parliament."  Such 
deficiencies  as  exist,  he  suggests,  may  result  either  from 
the  destruction  of  the  records  or  from  neglect  to  turn  them 
over  at  the  Restoration  or  when  the  lay  registers  entered 
upon  their  functions.^  Waters  agrees  with  Burn;^  and  an 
examination  of  the  published  parish  registers  entirely  con- 
firms this  view.*     It  is  hard,  therefore,  to  understand  the 

1  The  English  clerk  of  the  peace  keeps  the  records  of  the  quarter  sessions  and  in 
a  measure  corresponds  to  the  county  clerk  in  the  United  States ;  c/.  Howakd,  Local 
Const.  Hist,  I,  315. 

ZBUKN,  Parish  Registers,  52.  3  Waters,  Parish  Registers  of  England,  17. 

*The  registration  for  the  period  of  the  act  is  very  full  in  Hoveden,  The  Register 
Booke  .  ...  of  the  Cath.  and  Met.  Church  of  Cliriste  of  Cant.,  58,  59;  Margerison, 


KiSE  OF  Civil  Marriage 


427 


following  curious  statement  by  a  contemporary  writer  who 
is  clearly  no  admirer  of  Cromwell/  Referring  to  certain 
"bills  of  mortality"  for  Romsey  in  Hampshire  and  Tiverton 
in  Devonshire,^  he  remarks  "that  in  the  years  1648  and 
1649,  being  the  time  when  the  people  of  England  did  most 

The  Registers  of  the  Parish  Church  of  Calverly,  II,  117-24;  Staveet,  The  Parish 
Register  of  Burnsall-in-Craven,  87-104.  In  Phillimore's  Gloustershire  Parish 
Registers,  I,  9,  there  are  no  entries  for  1653-54  and  for  several  years  before,  while 
they  are  relatively  full  thereafter.  Bulwek's  Parish  Registers  of  St.  Martin-cum- 
Gregory  in  the  City  of  York,  II,  78-87,  have  a  full  record  both  before  and  after  1660. 
The  same  is  true  of  Cowpee's  Booke  of  Register  of  the  Parish  of  St.  Peter  in  Canter- 
bury, 89-92,  for  the  period  1640-60;  while  before  1640 there  are  fewer  entries,  and  after 
1660  a  much  less  complete  record.  In  Sandees's  Registers  of  Eastham,  Cheshire. 
75-85,  the  record  begins  in  1654  after  an  interval  of  ten  years ;  but  his  Registers  of 
Bebington,  County  Chester,  129,  show  a  blank  for  the  years  1654-56.  Radcliffe'3 
Registers  of  St.  Chad,  Saddlworth,  supplement,  450-53,  444-49;  and  the  Register  Booke 
of  Inglebye  iuxta  Grenhow,  165-69,  are  full  and  very  interesting.  Compare  the  other 
registers  named  in  Bibliographical  Note  X,  showing  a  few  entries  each  year. 

J  John  Gkaunt,  iVa^Mrai  and  Political  Observations  (3d  ed.,  Oxford,  1665),  158, 
159  (Appendix).  For  calling  my  attention  to  this  passage  I  am  indebted  to  the 
kindness  of  Professor  Charles  H.  Hull.  In  the  "  Introduction "  to  his  edition  of 
Petty's  Economic  Writings  (Cambridge,  1899),  I,  xxxiv  tf.,  Ixxv  ff.,  Ixxx  ff.,  may  be 
found  an  account  of  Graunt's  life  and  works. 

2 "The  Table  of  the  Parish  of  Tiverton"  (Geaunt,  Natural  and  Political 
Observations,  158, 159) : 


Yeaes 

Wed- 
dings 

Christened 

Buried 

M. 

F. 

Both 

M. 

F. 

Both 

1650 

9 

9 

9 

21 

108 

140 

109 

102 

60 

37 

66 
50 
80 
89 

105 
87 

107 
94 
70 
77 

79 

63 

73 

219 

101 

104 

90 

101 

83 

78 

145 
113 
153 

208* 

206 

191 

197 

195 

153 

155 

7 
5 
48 
47 
72 
87 
56 
67 
77 
72 

9 
10 
51 
78 
68 
114 
86 
59 
85 
80 

16 

1651 

15 

1652 

99 

1653 

125 

1654 

140 

1655 

201 

1656 

142 

1657 

126 

1658 

162 

1659 

152 

1660 

604 

27 
38 
36 
35 
41 

177 

815 

61 
83 
73 
68 
68 

891 

68 
93 
56 
64 

72 

1716 

129 
176 
129 
132 
140 

538 

70 
73 
91 
72 
98 

640 

69 
85 
95 
74 
114 

1178 
139 

1661 

158 

1662 

186 

1663 

146 

1664 

212 

353 

353 

706 

404 

437 

841 

♦Error  in  the  original. 

Geaunt's  "Table  for  the  Country  Parish" — identified  by  Hull  with  Romsey  in 
Hampshire  (Petty,  Economic  Writings,  II,  412)  —  affords  similar  evidence.  The 
table  for  Cranbrook  in  Kent  ends  in  1649. 


428  Matrimonial  Institutions 

resent  the  horrid  Parricide  of  his  late  Sacred  Majesty, 
....  there  were  but  nine  weddings  ....  in  the  same 
places,  when  there  were  ordinarily  between  30  and  40  per 
Annum;  and  but  16,  when  there  were  ordinarily  .... 
between  50  and  60.  And  it  may  also  be  observed  that 
something  of  this  black  murther  appeared  in  the  years  1643 
and  1644  when  the  Civil  war  was  at  the  highest,  but  the 
contrary  [in  the]  years  1654,  1655,  etc.,  to  prevent  the  new 
way  of  Marriage  then  imposed  upon  the  people."  Just  how 
the  increase  in  the  number  of  weddings  recorded  in  the  years 
1654-58  may  be  explained  as  due  to  a  desire  "to  prevent  the 
new  way  of  Marriage,"  we  are  not  informed.  It  cannot  be 
inferred  that  people  hurried  to  get  married  in  anticipation 
of  the  new  law,  for  it  was  put  in  force  the  next  month  after 
its  passage ;  nor  that  through  zeal  they  married  more  rapidly 
according  to  the  Book  of  Common  Prayer,  in  defiance  of  the 
new  civil  forms,  although  in  some  cases  the  religious  cele- 
bration may  have  been  still  employed.  But  it  is  useless  to 
speculate  as  to  the  sense  of  the  passage.  The  statistical  tables 
for  the  two  parishes  submitted  by  this  writer  afford  very 
strong  evidence  that  the  apparent  increase  in  the  number  of 
weddings  is  mainly  due  to  the  fact  that  the  records  were 
better  kept.  It  will  be  noticed  that  there  is  a  corresponding 
rise  in  the  number  of  christenings  and  burials ;  and  this  fact 
can  scarcely  be  accounted  for  by  assuming  that  people 
hastened  to  get  born  or  to  die  through  opposition  to  an 
ordinance  of  the  Barebone's  Parliament.  After  the  Restora- 
tion there  is  a  decided  falling  off  in  the  registration. 

The  great  success  of  this  early  attempt  at  reform  in 
matrimonial  administration  cannot,  however,  be  thoroughly 
appreciated  unless  one  reflects  that  throughout  the  ages  the 
matter  of  registration  had  been  shamefully  neglected  and 
the  record  books  recklessly  destroyed.  Their  custody  being 
"frequently  committed  to  ignorant  parish  clerks,  who  had 


Rise  of  Civil  Marriage  429 

no  idea  of  their  utility  beyond  their  being  occasionally  the 
means  of  putting  a  shilling  into  their  pockets  for  furnishing 
extracts;"  and  "at  other  times  being  under  the  superin- 
tendence of  an  incumbent,  either  forgetful,  careless,  or 
negligent,  the  result  has  necessarily  been  that  many 
registers  are  miserably  defective.'"  This  judgment  applies 
to  the  times  following  the  Commonwealth  as  well  as  to  the 
period  falling  between  1538  and  the  act  of  1653." 

Many  specimens  of  the  marriage  records  of  the  Common- 
wealth have  been  discovered,  representing  each  phase  of 
procedure.'  Of  these  the  following  entry  of  the  marriage  of 
Oliver  Cromwell's  daughter,  taken  by  Waters  from  the  regis- 
ter of  St.  Martin's  in  the  Fields,  may  serve  as  an  example: 

"These  are  to  certifie  whom  it  may  concerne,  that  accord- 
ing to  a  late  Act  of  Parliament  ....  Publication  was  made 
in  the  publique  meeting  place,  in  the  Parish  Church  of  the 
parish  of  Martins  in  the  Fields  in  the  county  of  Middlesex, 
upon  three  several  Lord's  Days,  at  the  close  of  the  morning 
exercise,  namely,  upon  the  XXV.  day  of  October  MDCLVII., 
as  alsoe  upon  the  I.  and  VIII.  day  of  November  following, 

1  Burn,  Parish  Registers,  40;  cf.  Watees,  Parish  Registers  of  England,  10, 11. 
In  some  books  many  entries  are  lacking,  or  there  are  breaks  for  several  years 

together.  Often  the  record  is  so  carelessly  made  as  to  be  of  little  value,  even  when 
not  entirely  illegible.  Thus  at  St.  'Ev/e,  the  "  parishioners  refusing  to  allow  5s.  per 
annum  for  keeping  a  register,  there  was  none  kept  for  the  years  1675-6-7,"  except  two 
entries :  Buen,  op.  cit.,  41.  The  clerk  of  Plungar,  Leicestershire,  made  use  of  the 
registration  book  for  wrapping  paper;  and  Buen  gives  many  other  similar  illustra- 
tions in  his  unique  volume :  ibid.,  41  ff. 

2  See  chap,  viii,  pp.  359  ff.,  above. 

3  The  most  interesting  published  records  of  the  period  which  I  have  seen  are 
those  contained  in  the  Register  Booke  of  Inglebye  iuxta  Grenhow  (Canterbury,  1889), 
extending  from  March  13,  1654,  to  May  3, 1659.  They  are  written  in  English.  The 
next  entry  thereafter,  without  a  word  of  comment  on  the  change,  is  in  Latin,  as  if 
appropriately  to  mark  the  return  of  the  ancien  regime.  Extracts  from  various 
records  will  be  found  also  in  Bden,  op.  cit.,  25,  26,  52,  54, 160  ff. ;  and  of  those  several 
are  reproduced  by  Feiedberg,  Eheschliessung,  327,  328.  See  also  Reports  of  the  Hist. 
Manuscripts  Commission,  V,  .594  (Par.  Registrar,  Mendlesham,  Suffolk,  1653-57); 
Notes  and  Queries,  2d  series.  III,  306,  307;  3d  series,  V,  526  (from  Wilkinson's  Hist, 
of  the  Parochial  Church  of  Burnly,  1856);  3d  series,  I,  228;  Gentleman's  Afagazine, 
LIV  (1784),  8,  giving  a  certificate  of  a  marriage  at  Stratfield  Saye,  Southampton, 
October  2,  1654.  It  is  printed  in  Jeaffreson,  Brides  and  Bridals,  11,  68,  69,  note. 
Compare  the  registers  cited  in  Bibliographical  Note  X. 


430  Matrimonial  Institutions 

of  a  marriage  agreed  upon  between  the  Honorable  Robert 
Rich  of  Andrew's  Holborn,  and  the  Right  Honorable  the 
Lady  Frances  Cromwell,  of  Martins  in  the  Fields,  in  the 
county  of  Middlesex.  All  which  was  fully  performed  accord- 
ing to  the  Act  without  exception. 

"In  witness  whereof  I  have  hereunto  set  my  hand  the 
IX.  day  of  November,  MDCLVII. 

William  Williams, 
Register  of  the  Parish  of  Martins  in  the  Fields." 

Then  follows  this  entry  "in  the  hand  of  Henry  Scobell" 
who  was  doubtless  the  officiating  magistrate :  ^ 

"Married,  XL  Novemb.,  MDCLVII,  in  the  presence  of 
His  Highness  the  Lord  Protector,  the  Right  Honble.  the 
Earls  of  Warwick  and  Newport,  Robert  Lord  Birch,  the 
Lord  Strickland,  and  many  other." ^ 

Sometimes  the  entries  are  fuller  in  details,  and  more 
ingenious  in  orthography.  Here  is  one  from  the  register 
of  "Inglebye  iuxta  Grenhow": 

"George  Middleton  of  the  Parish  of  Carleton  husbandma, 
son  of  William  Middleton  of  the  same  parish  husbandman 
&  Isabell  Easebie  of  Green-howe  in  the  parish  of  Inglebye 
spinster  daughter  of  Isabell  Easbie  of  the  said  Greenhowe; 
having  agreed  to  be  married  did  deliver  to  me  Willia 
Boweston  of  Inglebie  aforesaid  parish  Register  of  the  said 
Inglebie  their  names  sirnames  additions  and  places  of 
aboade,  &  the  same  of  their  parents  likewise  in  writeing 
upon  the  19th  of  fPebruarie  1654.  which  was  published  in 
the  publick  meeting  place  of  the  said  Inglebye  commonly 
called  the  Church  or  chappell  upon  the  25th  of  februarie 
and  the  4th  &  11th  of  March  1654  at  the  Close  of  the 
morning  exercise  by  me  William  Boweston  Register. 

1  Henry  Scobell  was  clerk  to  the  Parliament  until  1658,  and  compiler  of  the 
"  Collections  of  Acts  and  Ordinances  "  of  the  revolutionary  period. 

2  Waters,  op.  cit.,  16, 17;  Burn,  op.  cit.,  160;  quoted  also  by  Feiedbekg,  op.  ciL, 
328,  note;  and  Jeaffkeson,  op.  cit,,  II,  72,  73,  note. 


Rise  op  Civil  Marriage  431 

"And  the  said  George  Middletoii  &  Isabell  Easbie 
expressed  their  conset  unto  Marriage  by  the  words  of  the 
Act  before  George  Marwood  Esquire  one  of  the  Justices  of 
the  peace  of  the  Countie  of  York  &  were  by  the  said 
Justice  declared  to  be  husband  &  wife  the  13th  of  March 

Geo:  Marwood.'" 

Each  of  the  two  documents  just  presented,  it  will  be 
noticed,  consists  of  two  parts:  the  certificate  of  the  register 
to  the  magistrate ;  and  the  magistrate's  entry  in  the  register 
book  after  the  ceremony  has  been  performed.  The  following 
is  an  example  of  the  marriage  certificate  which  by  the  act  the 
justice  is  to  deliver  to  the  parties,  when  required,  to  be  filed 
by  them  with  the  county  clerk  of  the  peace,  if  they  see  fit: 

"Fforasmuch  as  I,  having  received  a  certificatt  of  the  date 
of  the  xiij  of  this  month,  under  the  hand  and  seale  of  Owen 
Perkins,  Gent.,  Register  of  the  consolidated  Churches  of 
Mathry,  that  Publicacon  was  made  of  an  intencon  of  marriage 
three  lord's  days  thenbefore  in  the  said  parish  Church 
between  Phillip  Harry  and  Ann  Harry,  if  not  anything 
objected  to  the  contrary,  These  are  therefore  at  the  desire 
of  the  Said  parties  to  certify  all  whome  it  may  concern,  that 
according  to  the  Act  of  Parliament  for  marriages,  the  Said 
Phillip  and  Anne  this  present  day  came  before  me,  and  tak- 
ing each  other  by  the  hand  did  plainly  and  distinctly  pro- 
nounce the  words  in  the  said  Acte  mencoed  to  be  pronounced 
by  them,  And  thereupon,  according  to  the  said  Acte,  I  pro- 
nounce them  to  be  husband  and  wife.  Given  under  my  hand 
and  seale  the  ffourteenth  day  of  July,  1655 

Thomas  Davis."' 

1  Register  Booke  of  Inglebye  iuxta  Grenhow,  75. 

^ Notes  and  Queries,  2d  series,  III  (1857),  306,  307.  For  another  certificate  of  the 
same  kind,  of  a  marriage  published  in  the  market-place,  see  Gentleman's  Magazine 
(1784),  8;  also  quoted  by  Feiedbeeg,  op.  cit.,  327,  328,  note;  and  other  examples  may 
be  found  in  Sanders's  Parish  Registers  of  Eastham,  76,  note ;  and  Jeatfeeson's  Mid- 
dlesex County  Records,  III,  223. 


432  Matrimonial  Institutions 

The  law  of  1653,  it  thus  appears,  constitutes  a  singularly 
important  episode  in  the  social  and  religious  history  of  Eng- 
land. It  remained  in  force,  with  a  modification  in  1656, 
during  the  seven  years  preceding  the  fall  of  the  Common- 
wealth, and  called  forth  the  fierce  opposition  and  hatred  of 
the  royalist  party.  It  was  ridiculed  by  the  pamphleteer'  and 
satirized  by  the  poet,^      Every  provision  drew  forth  a  sneer. 

1  The  output  of  controversial  literature  on  this  subject  may  have  been  great,  as 
Feiedbeeg  {op.  cit.,  328  n.  2)  suggests;  but  the  number  of  pamphlets  preserved  does 
not  seem  to  be  large.  In  the  valuable  collection  of  the  Sutro  Library,  containing 
thousands  of  pamphlets  covering  nearly  every  possible  question  debated  at  the  time, 
I  have  been  able  to  discover  but  two  pieces  on  the  civil-marriage  law.  One  of  these, 
a  copy  of  the  periodical  entitled  Several  Proceedings  of  Parliament,  publishes  the 
act,  which  had  just  passed,  without  a  word  of  comment.  Friedberg  had  a  similar 
experience  in  the  Berlin  Library. 

2Flecknoe'8  Diarium  (1656),  83,  contains  the  following,  quoted  also  by  Buen 

(op.  cit.,  163),  Jeaffeeson  {op.  cit.,  II,  74,  75),  and  Feiedbeeg  {op.  cit.,  329) : 

"On  the  Justice  of  Peace's  Making  Marriages  And  the  Crying  Them  in  the 

Marcket. 

1 

Now  just  as  'twas  in  Saturn's  Reign 

The  Golden  Age  is  returned  again 

And  Astrea  again  from  heaven  is  come 

When  all  the  Earth  by  Justice  is  done. 

2 

Amongst  the  rest,  we  have  cause  to  be  glad 

Now  Marriages  are  in  marckets  made 

Since  Justice  we  hope  will  take  order  there 

We  may  not  be  cousened  no  more  in  our  ware 

3  and  4 

[Indecent  stanzas.] 

5 

So  all  incommodities  would  be  prevented 

And  every  one  would  hold  them  contented, 

And  all  debates  in  Marriage  would  cease 

When  things  were  done  by  Justice  of  Peace. 

6 

Besides  each  thing  would  fall  out  right 

And  that  old  Proverb  be  verified  by't 

That  Marriage  and  Hanging  both  together 

When  Justice  shall  have  disposing  of  either. 

7  and  8 

[Two  stanzas  with  indecent  references.] 

9 

V         Let  Parson  and  Vicar  then  say  what  they  will 

f        The  Custome  is  good  (God  continue  it  still). 

I         For  Marriage  being  now  a  Trafique  and  Trade 

/         Pray  where  but  in  Marckets  should  it  be  made. 


KiSE  OF  Civil  Marriage  433 

Marriage  is  made  a  "traffic"  because  published  in  the  market- 
place; "matrimony  and  hanging"  join  hands  before  the  same 
justice;  and  the  "lay  register"  comes  in  for  his  full  share  of 
abuse.  "Levellers  and  phanaticks,"  sadly  complains  one 
writer,  "blush  not  at  their  own  rushing  into  other  men's 
offices, — a  bold  but  witless  Justice  of  y®  Peace,  makes  his 
neighbouring  ministers  cyphers,  whilst  he  forceth  y®  King's 
subjects  (quite  against  the  graine)  to  elect  and  he  to  confirm 
a  mere  layman  in  the  office  of  Parish  Register — Proh  pudor 
fronti  enim,  nulla  fides.'''' ^  The  recorder  of  Cirencester  in 
Gloucestershire  charges  the  lack  of  entries  for  several  years 
to  the  account  of  the  act  passed  by  the  "Rump,"  the  "said 
Parliament  ....  consisting  of  Anabaptists  and  Independ- 
ents;"^ while  in  1659,  the  clerical  register  of  Christ's 
Church,  Hants,  spitefully  declares  that  "maryinge  by  jus- 
tices, election  of  registers  by  Parishioners,  and  the  use  of 
ruling  elders,  first  came  into  fashion  in  the  time  of  rebellion, 
under  that  monster  of  nature  and  bludy  tyrant,  Oliver 
Cromwell."' 

On  the  other  hand  the  principles  of  this  measure  found  a 
mighty  champion  in  Milton,  in  whose  writings,  says  Fried- 
berg,  the  religious  tendencies  of  his  party  were  molded  al- 
most into  a  "scientific  system."*  The  following  extract  from 
"The  likeliest  means  to  remove  Hirelings  out  of  the  Church" 

10  ^ 

Twas  well  ordain'd  they  should  be  no  more 
In  Churches  and  Chapels  then  as  before  J 

Since  for  it  in  Scripture  we  have  example  | 

How  buyers  and  sellers  were  drov'n  out  o'  th'  Temple. 

11 
Meantime  God  blesse  the  Parliament 
In  making  this  Act  so  honestly  meant 
Of  these  good  marriages  God  blesse  the  breed 
And  God  blesse  us  all,  for  was  never  more  need." 

1  WooTTON,  Line. :  Buen,  Parish  Registers,  26  n.  1.  2  Bden,  op.  cit.,  161. 

3 Ibid.,  161.    See  similar  examples  in  Watees,  Parish  Registers  in  England,  18, 19. 

♦  Feiedbeeg,  Eheschliessung,  325;  Geschichte  der  Civilehe,  13, 14. 


434  Matrimonial  Institutions 

is  interesting  as  epitomizing  the  views  of  the  Independents, 
showing  that  they  were  grounded  upon  the  fundamental 
principles  of  Old  English  custom: 

"As  for  marriages,  that  ministers  should  meddle  with 
them,  as  not  sanctified  or  legitimate  without  their  celebra- 
tion, I  find  no  ground  in  scripture  either  of  precept  or 
example.  Likeliest  it  is  (which  our  Selden  hath  well 
observed  1.  II,  c.  58,  ux.  Eb.)  that  in  imitation  of  heathen 
priests,  who  were  wont  at  nuptials  to  use  many  rites  and 
ceremonies,  and  especially,  judging  it  would  be  profitable, 
and  the  increase  of  their  authority,  not  to  be  spectators  only 
in  business  of  such  concernment  to  the  life  of  man,  they 
insinuated  that  marriage  was  not  holy  without  their  benedic- 
tion, and  for  the  better  colour,  made  it  a  sacrament ;  being 
of  itself  a  civil  ordinance,  a  house  hold  contract,  a  thing 
indifferent  and  free  to  the  whole  race  of  mankind,  not  as 
religious,  but  as  men:  best,  indeed,  undertaken  to  religious 
ends,  and,  as  the  apostle  saith,  I  Cor,  VII.,  'in  the  Lord.' 
Yet  not  therefore  invalid  or  unholy  without  a  minister  and 
his  pretended  necessary  hallowing,  more  than  any  other  act, 
enterprise,  or  contract  of  civil  life,  which  ought  all  to  be 
done  also  in  the  Lord  and  to  his  glory:  all  which,  no  less 
than  marriage,  were  by  the  cunning  of  priests  heretofore,  as 
material  to  their  profit,  transacted  at  the  altar.  Our  divines 
deny  it  to  be  a  sacrament ;  yet  retained  the  celebration,  till 
prudently  a  late  parliament  recovered  the  civil  liberty  of 
marriage  from  their  encroachment,  and  transferred  the 
ratifying  and  registering  thereof  from  the  canonical  shop 
to  the  proper  cognizance  of  civil  magistrates."  * 

1  Milton,  Prose  Works  (Bohn,  1848),  III,  21, 22.  This  volume  contains  a  series  of 
discussions  on  marriage  and  divorce,  which  together  embody  all  the  learning  which 
the  Puritan  could  produce  in  support  of  his  theories :  The  Doctrine  and  Discipline 
of  Divorce;  The  Judgment  of  Martin  Bucer ;  Tetrachordon;  Colasterion,  etc. 

Milton  does  not  anywhere  discuss  the  form  of  solemnization  (cf.  Feiedbeeg, 
op.  cii.,  327,  note).  In  his  "Exposition  on  Places  of  Scripture  which  treat  of  Mar- 
riage "  ( Works,  III,  341-46) ,  after  considering  the  definitions  given  by  many  writers, 


KiSE  OF  Civil  Marriage  435 

After  the  Restoration,  though  not  expressly  repealed,  the 
act  of  Cromwell  was  at  once  superseded  by  the  laws  in  force 
before  the  Revolution.  The  more  revengeful  faction  of  the 
royalists  even  strove  to  have  all  marriages  contracted  under 
the  act  made  null  and  void.  But  a  proposition  so  monstrous 
could  not  prevail;  and  a  statute  legalizing  civil  marriages 
was  passed  during  the  first  year  of  Charles  II.' 

II.       FLEET    MARRIAGES    AND    THE    HARDWICKE   ACT,   1753 

In  order  to  understand  the  cumulative  influences  which 
finally  in  the  middle  of  the  eighteenth  century  produced  the 
next  English  statute  prescribing  a  definite  form  for  mar- 
riages, it  will  be  necessary  to  point  out  the  anomalies  of  the 
old  system  which  during  the  period  between  the  Restoration 
and  that  time  led  to  abuses  of  a  most  startling  character. 

Previous  to  the  reign  of  William  III.  only  spiritual 
punishment  had  been  imposed  for  secret  marriages;  but 
under  that  monarch  begins  a  series  of  acts  which,  though 
chiefly  intended  as  revenue  measures,  in  effect  prescribed 
also  temporal  penalties.  The  first  of  these  statutes^  was 
that  of  1694  which  imposed  on  all  marriages  a  direct  tax, 
graduated  according  to  the  rank  of  the  parties.  To  facilitate 
the  enforcement  of  the  law  the  clergy  were  required  to  keep 
registers  to  which  the  tax  collectors  should  have  access. 
But  there  were  certain  churches  which  had  long  claimed  to 
be  exempt  from  the  episcopal  visitations,  and  therefore  they 

he  produces  one  of  his  own.  "  Marriage,"  he  says,  "  is  a  divine  institution,  joining 
man  and  woman  in  a  love  fitly  disposed  to  the  helps  and  comforts  of  domestic  life." 
But  he  rejects  the  doctrine  of  the  Fathers  and  canonists  that  marriage  is  a  "  remedy. " 
The  "  internal  Form  and  soul  of  this  relation  is  conjugal  love  arising  from  a  mutual 
fitness  to  the  final  causes  of  wedlock,  help  and  society  in  religious,  civil,  and 
domestic  conversation,  which  includes  as  an  inferior  end  the  fulfilling  of  natural 
desire,  and  specifical  increase." — Ibid.,  342. 

112  C.  II.,  c.  33:  Statutes  at  Large,  III,  24.  Cf.  Feiedbeeg,  op.  cit.,  330.  It  is 
curious  to  see  Ashton,  The  Fleet:  Its  Biver,  Prison,  and  Marriages  (London,  1889), 
332,  referring  to  this  act  as  designed  merely  to  legalize  common  law  or  private 
marriages  before  witnesses,  making  no  mention  whatever  of  the  act  of  1653. 

2  5  and  6  W.  III.,  c.  21 :  Statutes  at  Large,  III,  358-62. 


436  Matrimonial  Institutions 

now  claimed  to  be  free  from  the  operation  of  the  statute 
which  had  only  made  the  marriage  business  of  their  incum- 
bents more  profitable  by  removing  competition.'  A  supple- 
mentary act  was  therefore  passed  in  the  following  year/ 
including  such  places  and  requiring  that  all  marriages 
should  be  solemnized  only  after  publication  of  banns  or 
obtaining  the  bishop's  license,  under  penalty  of  one  hundred 
pounds  for  the  fiirst  and  three  years'  suspension  from  office 
for  the  second  violation  of  the  law  by  any  clergyman.*  But 
even  this  measure  was  inadequate.  It  had  not  been  fore- 
seen that  there  were  clergymen  not  comprehended  under  the 
titles  "parsons,  vicars,  and  curates"  enumerated  in  the 
statute.  These  were  actually  benefited  by  the  act.*  By 
connivance  on  the  part  of  the  regular  clergy  such  ministers 
were  able  to  evade  the  law.  They  "do  substitute  and 
employ,"  runs  the  act  of  1696,  "and  knowingly  and  wit- 
tingly suffer  and  permit,  diverse  other  Ministers  to  marry 
great  Numbers  of  Persons  in  their  respective  Churches  and 
Chapels  without  Publication  of  Banns  or  Licenses  of  mar- 
riage first  had  and  obtained;  many  of  which  Ministers  so 
substituted,  employed,  permitted  and  suffered  to  marry,  as 
aforesaid,  have  no  Benefices  or  settled  Habitations,  and  are 
poor  and  indigent,  and  cannot  easily  be  discovered  and  con- 
victed of  the  Offences  aforesaid:    And  whereas  Ministers, 

1  It  should  be  remembered  that  even  in  case  of  the  secret  or  irregular  marriages 
the  priest  often  officiated.  The  great  object  was  to  avoid  publicity.  Hence  churches 
which  were  or  claimed  to  be  free  from  the  visitations  or  oversight  of  the  bishop 
allowed  marriage  without  banns  or  license.  This  became  a  lucrative  source  of 
revenue.  For  example,  in  the  church  of  St.  James,  Duke's  Place,  between  1664  and 
1691,  about  forty  thousand  marriages  were  thus  celebrated;  and  many  were  cele- 
brated at  Trinity  Minores:  Buen,  Fleet  Marriages,  2-5;  idem,  Parish  Registers,  146; 
Feiedbekg,  Eheschliessung,  332-35.  Cf.  also  Jeaffeeson's  chapter  on  "  Prisons  and 
'  Lawless '  Churches,"  in  Brides  and  Bridals,  II,  115-21. 

2  6  and  7  W.  III.,  c.  6,  §52:  Statutes  at  Large,  III,  370.  Cf.  Hammick,  Mar- 
riage Law  of  England,  10;  also  Jeaffeeson's  chapter  on  "Taxes  on  Celibacy," 
op.  cit..  II,  78  ff.,  and  131  fF.,  167  ff. 

3 Violations  of  the  law  did  not,  however,  invalidate  the  marriage:  Lecky, 
England  in  the  18th  Century,  I,  531. 

*  Cf.  Jeaffeeson,  op.  cit.,  II,  168, 169. 


EisE  OF  Civil  Marriage  437 

being  in  Prison  for  Debt  or  otherwise,  do  marry  in  the  said 
Prisons,  many  Persons  resorting  thither  for  the  Purposes 
aforesaid,  and  in  other  Places  for  Lucre  and  Gain  to  them- 
selves," '  therefore  the  one  hundred  pounds'  penalty  pre- 
scribed in  the  former  statute  is  extended  to  these  cases,' 
and  a  fine  of  ten  pounds  is  imposed  on  every  man  married 
without  banns  or  license. 

The  last  paragraph  of  the  above  quotation  is  interesting 
as  being  perhaps  the  first  statutory  reference  to  the  cele- 
brated "Fleet"  marriages,  which  constitute  one  of  the  most 
astonishing  chapters  that  the  history  of  ecclesiastical  admin- 
istration can  produce.  The  Fleet,  as  is  well  known,  was 
the  prison  in  which  formerly  all  prisoners  for  debt  from 
tlie  entire  kingdom  were,  or  could  demand  to  be,  confined. 
On  account  of  the  scant  accommodation  for  the  vast  number 
congregated  there,  it  became  customary  to  allow  those  who 
could  give  security  for  appearance  in  the  prison  when  sum- 
moned to  take  private  lodgings  or  set  up  a  private  estab- 
lishment~anywhere  within  the  "rules  of  liberties"  of  the 
Fleet — a  portion  of  London  of  considerable  area  and  well 
defined  limits.^  The  Fleet  had  a  chapel  with  a  regular 
chaplain  of  its  own,  who  sometimes  eked  out  his  income 
through  fees  for  fraudulent  and  clandestine  marriages.*    But 

1  Extract  from  7  and  8  W.  III.,  c.  35:  Statutes  at  Large,  III,  422. 

2  "  But  this  penalty  was  not  renewed  at  each  violation  of  the  act,  and  the  offender 
was  able  by  a  writ  of  error  to  obtain  a  delay  of  about  a  year  and  a  half,  during  which 
time  he  carried  on  his  profession  without  molestation,  made  at  least  400  1.  or  .500  1. 
and  then  frequently  absconded." — Lecky,  Hist,  of  Eng.  in  the  18th  Century,  I,  533; 
cf.  Bdrn,  Fleet  Marriages,  6. 

3For  full  details  as  to  the  history  of  the  Fleet,  see  Ashton,  The  Fleet:  Its  River, 
Prison,  and  Marriages,  especially  233  ff .,  237  ff.,  331  ff.  "  The  rules  of  liberties  of  this 
comprehend  all  Ludgate-Hill  to  the  Old  Bailey  on  the  north  side,  and  to  the  Cock- 
alley  on  the  south;  both  sides  of  the  Old  Bailey  to  Fleet-lane  ;  all  Floot-lane  and  the 
east-side  of  the  marcket,  from  Fleet-lane  to  Ludgate  Hill."— Haeeison,  New  and 
Universal  Hist,  of  London  (London,  1776),  II,  447;  Feiedbeeg,  336  n.  4.  C/.  alsojEAF- 
FEESON,  op.  cit.,  II,  122  ff. 

i  BuEN,  op.  cit.,  7,  8 ;  Ashton,  op.  cit.,  332,  3.38 ;  Tegg,  The  Knot  Tied,  202.  These 
chaplains  "  of  course,  married  people  after  publication  of  banns  in  their  own  chapels 
according  to  law;"  and  doubtless  some  of  the  weddings  before  them  were  entirely 


438 


Matrimonial  Institutions 


here  were  confined  among  others  many  clergymen,  some  of 
whom  made  a  regular  business  of  celebrating  marriages ; 
and  they  had  to  compete  with  other  parsons,  often  disrepu- 
table men,  perhaps  deprived  of  their  places  or  benefices  for 
misconduct,  who  took  up  their  abode  in  the  precincts  of  the 
Fleet  to  gain  a  living  from  the  disgraceful  traflSc  in  matri- 
mony. Even  laymen  may  have  sought  a  share  in  the  profits  ; 
and  these,  like  the  others,  did  not  fail  to  wear  the  priestly 
"cassock,  gown,  and  bands,"'  in  order  to  impose  upon  the 
unwary.  The  ceremony  was  not  performed  in  church,  but 
in  the  private  rooms  of  the  parson.  Often  an  office  or 
marriage  shop  was  opened  and  a  big  sign-board  hung  out 
announcing  the  business  and  commending  the  quality  of 
service  rendered  within,^  while  standing  advertisements  were 


respectable.  Such  was  probably  the  marriage  in  the  Fleet  of  George  Lester  and 
Mistress  Babbington  as  early  as  1613:  Burn,  op.  cit.,  5;  Ashton,  op.  cit.,  335,338; 
Tegg,  op.  cit.,  199.  But  in  these  chapels  as  well  as  out  of  them  clandestine  marriages 
were  solemnized.  Here  is  an  example  from  the  Original  Weekly  Journal  of  Sept.  26, 
1719:  "One  Mrs.  Anne  Leigh,  an  heiress  of  £200.  per  annum  and  £6000.  ready  cash, 
having  been  decoyed  away  from  her  friends  in  Buckinghamshire,  and  married  at  the 
Fleet  chapel  against  her  consent;  we  hear  the  Lord  Chief  Justice  Pratt  hath  issued 
out  his  warrant  for  apprehending  the  authors  of  this  contrivance,  who  had  used  the 
young  lady  so  barbarously,  that  she  now  lyes  speechless."— Buen,  op.  cit.,  7  n.  2;  also 
Ashton,  op.  cit.,  338,  339.  Celebration  in  the  Fleet  chapel,  not  elsewhere,  was  put  an 
end  to  by  the  act  of  10  Anne,  c.  19.  Cf.  Hammick,  The  Marriage  Law  of  England,  11 ; 
Bukn,  op.  cit.,  8. 

1  Ashton,  op.  cit.,  340. 

2  The  following  is  a  copy  of  the  "  hand-bill "  of  Peter  Symson  taken  from  Buen's 
Fleet  Marriages,  54 : 


G.  R. 

At  the  true  Chapel 

at  the  old  red  Hand  and  Mitre,  three  doors  from  Fleet  Lane 

and  next  Door  to  the  White  Swan; 
Marriages  are  performed  by  authority  by  the  Reverend  Mr. 
Symson  educated  at  the  University  of  Cambridge,  and  late 
Chaplain  to  the  Earl  of  Rothes. 

N.  B.    Without  Imposition 


Symson,  as  he  says,  was  not  a  prisoner.  Like  "many  of  his  fellows,"  he  was 
witness  in  a  bigamy  trial  in  1751.  He  was  asked :  "  Why  did  you  marry  them  without 
license?" 

''''Symson — Because  somebody  would  have  done  it,  if  I  had  not Never  had 


Rise  of  Civil  Marriage  430 

also  kept  in  the  newspapers.  The  following  notice  of  his 
business  by  parson  Lando  is  quoted  by  Friedberg  from  the 
Daily  Advertiser,  1749: 

"Marriages  with  a  Licence,  Certificate  and  a  Crown  Stamp, 
at  a  Guinea,  at  the  New  Chapel,  next  door  to  the  China  Shop, 
near  Fleet  Bridge,  London,  by  a  regular  bred  Clergyman, 
"and  not  by  a  Fleet  Parson  as  is  insinuated  in  the  public 
papers ;  and  that  the  Town  may  bee  freed  mistakes,  no 
Clergyman  being  a  prisoner  in  the  Rules  of  the  Fleet  dare 
marry ;  and  to  obviate  all  doubts,  this  chapel  is  not  in  the 
verge  of  the  Fleet,  but  kept  by  a  Gentleman  who  was  lately 
Chaplain  on  board  one  of  his  Majesty's  men-of-war,  and  like- 
wise has  gloriously  distinguished  himself  in  defence  of  his 
King  and  Country,  and  is  above  committing  those  little 
mean  actions  that  some  men  impose  on  people,  being  deter- 
mined to  have  every  think  conducted  with  the  utmost  decency 
and  regularity,  such  as  shall  be  always  supported  in  law  and 
equity."^ 

Pennant,  in  his  Account  of  London,  written  "at  the  end 
of  the  last  century,"  gives  us  a  realistic  picture  of  the  Fleet 
parson.  "In  walking  along  the  street,  in  my  youth,  on  the 
side  next  to  the  prison,  I  have  often  been  tempted  by  the 
question,  Sir,  will  you  he  pleased  to  walk  in  and  he  married? 
Along  this  most  lawless  space  was  hung  up  the  frequent  sign 
of  a  male  and  female  hand  conjoined,  with.  Marriages  per- 
formed within,  written  beneath.  A  dirty  fellow  invited  you 
in.  The  parson  was  seen  walking  before  his  shop ;  a  squalid 
profligate  figure,  clad  in  tattered  plaid  night  gown,  with  a 

a  benefice  in  my  life.  I  have  had  little  petty  curacies  about  £20  or  £30  per  year.  I 
don't  do  it  for  lucre  or  gain. 

"CoMrt  —  You  might  have  exposed  your  person  had  you  pone  on  the  highway, 
but  you'd  do  less  prejudice  to  your  country  a  good  deal.  You  are  a  nuisance  to  the 
public;  and  the  gentlemen  of  the  jury,  it  is  to  be  hoped,  will  give  but  little  credit  to 
you."— Burn,  op.  cit.,  55;  Ashton,  op.  cit.,  357,  358.  On  Symson  (orSymsen)  see  also 
Jeaj-feeson,  op.  cit.,  II,  152. 

iFeiedbeeg,  op.  cit.,  341;  quoted  also  by  Ashton,  op.  cit.,  359;  and  Buen,  op. 
cit.,  59. 


440  Matrimonial  Institutions 

fiery  face,  and  ready  to  couple  you  for  a  dram  of  gin,  or  roll 
of  tobacco.'" 

Moreover,  various  taverns,  for  the  sake  of  the  profit  de- 
rived from  the  festivities  connected  with  weddings,  kept 
salaried  Fleet  parsons  or  others  in  their  employ  and  made 
announcement  of  this  extra  accommodation  also  by  a  sign 
containing  the  businesslike  inscription:  "Marriages  per- 
formed here."  ^  Literally  thousands  of  marriages  were  cele- 
brated by  Fleet  parsons  every  year.  A  single  priest,  John 
Gainham,^  between  the  years  1709  and^iv40,  during  which 
he  was  confined,  "solemnized"  thirty -six  thousand  marriages, 
though  he  had  many  competitors.*     Not  only  the  Fleet  pris- 

1  Pennant,  Some  Account  of  London  (3d  ed.,  1793),  232;  Ashton,  op.  cit,  344; 
also  in  Buen,  op.  cit.,  16,  note. 

2 Leckt,  Eng.  in  18th  Century,  I,  5-31 ;  Buen,  op.  cit.,^;  Feiedbeeg,  op.  cit.,  341, 
who  quotes  the  following  from  the  Weekly  Journal,  1723,  June  29 :  "  Several  of  the 
above  mentioned  brandy-men  and  victualers  keep  clergymen  in  their  houses  at  20 
shillings  per  week  each,  hit  or  miss,  but  its  reported  that  one  there  will  stoop  to  no 
such  low  conditions,  but  makes  at  least  500  pounds  per  annum  of  Divinity-jobs  after 
that  manner."    Cf.  also  Tegg,  The  Knot  Tied,  205,  note,  for  the  same  extract. 

3  John  Gainham,  the  "  wrynecked  parson,"  as  he  is  frequently  called  in  the  con- 
temporary newspapers,  rejoiced  in  the  significant  title  of  "  Bishop  of  Hell."  When 
asked  by  an  advocate  whether  he  was  "  not  ashamed  to  come  and  own  a  clandestine 
marriage  in  the  face  of  a  court  of  justice,"  he  blandly  replied:  Video  meliora,  de- 
teriora  sequor.  The  following  lines  from  the  "  Morning  Walk,  8°,  1751 "  (Bden,  Parish 
Registers,  155),  may  be  compared  with  similar  lines  reprinted  by  Ashton  (op.  cit., 
34o,  6ib) :  II  wjjgfg  iga(j  my  wand'ring  footsteps  now  1  the  Fleet 

I  Presents  her  tatter'd  sons  in  Luxury's  cause : 

Here  venerable  Crape  and  scarlet  Cheeks, 
\         With  nose  of  purple  hue,  high  eminent 

And  squinting  leering  looks,  now  strike  the  eye. 

B-sh-p  of  Hell,  once  in  the  precincts  call'd 

Renown'd  for  making  thoughtless  Contracts,  here 

He  reign'd  in  bloated  reeling  majesty 

And  passed  in  Sottishness  and  Smoke  his  time  — 

Eever'd  by  Gins  adorers,  and  the  tribe 

Who  pass  in  brawls,  lewd  jests,  and  drink,  their  days, 

Sons  of  low,  groveling  riot  and  debauch. 

Here  Cleric  grave  from  Oxford  ready  stands 

Obsequious  to  conclude  the  Gordian  knot, 

Entwin'd  beyond  all  dissolution  sure ; 

A  Reg'lar  this  from  Cambridge;  both  alike 

In  artful  Stratagem  to  tye  the  noose, 

While  women  '  Do  you  want  the  Parson?'  cry." 
*On  Gainham  see  Buen,  Parish  Registers,  155, 156;  idem.  Fleet  Marriages,  49-53; 
Ashton,  The  Fleet,  344-47;  Feiedbeeg,  Eheschliessung,  339,  340;  Jeaffeeson,  Brides 
and  Bridals,  II,  151. 


1 


Rise  op  Civil  Marriage  441 

oners  and  the  lower  classes  of  the  city,  but  many  persons  of  \ 
noble  titles  and  illustrious  names  are  enumerated  among 
their  customers.'  The  question  naturally  arises:  What  were 
the  causes  of  this  singular  phenomenon  ?  There  were  several 
inducements  to  the  patronage  of  Fleet  parsons,  chief  of  which 
were  the  superior  cheapness  and  avoidance  of  publicity.^ 
Smaller  fees  and  no  banns  were  required.  Besides  parental 
consent,  which  was  indispensable  for  minors  in  regular  mar- 
riages, was  unnecessary  in  the  Fleet.  Moreover,  it  was  a 
popular  error  of  the  times  that  a  woman  by  marriage  ceased 
to  be  liable  for  debts  previously  contracted.^ 

1  Lecey,  op.  cit.,  I,  532.    See  the  examples  in  Fkiedbebo,  op.  cit.,  343,  extracted 
from  BuEN,  Fleet  Marriages,  94  ff. ;  Jeaffeeson,  op.  cit.,  II,  174, 175;  and  Ashton, 
op.  cit.,  381,  361,  387.    Even  Lord  Chancellor  EUesmere  and  Sir  Edward  Coke,  Chief 
Justice  of  England,  had  contracted  secret  marriages :  Feiedbeeg,  op.  cit.,  344 ;  citing 
Macqdeen,  Treatise  of  Marriage,  Divorce,  &c.  (London,  1860),  6. 

2  There  seems  to  have  been  much  dislike  for  the  publicity  of  banns  even  on  the 
part  of  the  aristocracy :  see  the  letter  of  Horace  Walpole  to  Henry  Seymour  Conway, 
May  24, 1753,  Letters,  11, 334-36;  Feiedbeeg,  Eheschliessung,  342;  idem,  Geschichte  der 
Civilehe,  15 ;  Fey,  Considerations  on  ...  ,  Clandestine  Marriages,  8. 

3  "Therefore  there  were  in  the  Fleet  a  number  of  men  who  placed  themselves  at 
the  disposal  of  female  prisoners  for  marriage ;  as  Armstrong,  who,  within  fourteen 
months,  married  four  women,  and,  as  an  entry  in  the  register  reads,  received  eight 
shillings  'for  his  trouble.'  " — Feiedbeeg,  Eheschliessung,  342.  Gally,  Some  Consid- 
erations upon  Clandestine  Marriages  (London,  1750),  14-16,  appears  to  believe  that  * 
women  could  thus  escape  their  debts.  Cf.  NoKTON,  Die  Frav^en  in  England  (Berlin, 
1855),  267;  and  Buen,  Fleet  Marriages,  83. 

With  this  should  be  compared  the  companion  error  that  a  man  is  not  liable  for 
his  bride's  debts  if  he  takes  her  only  in  her  "smock"  or  "shift":  Bden,  Parish 
Registers,  153, 154,  note ;  Ashton,  The  Fleet,  386,  387 ;  idem.  Social  Life  in  the  Reign  of 
Queen  Anne,  41 ;  and  further  notices  of  "smock  marriages  "  in  Beand,  Popular  An- 
tiquities, III,  205,  380;  Notes  and  QueHes,  1st  series,  VI,  485,  561;  VII,  17,  84;  Tego, 
The  Knot  Tied,  299-301;  Wood,  The  Wedding  Day,  115,  116;  and  Radcliffe,  The 
Parish  Registers  of  St.  Chad,  Saddlworth,  58. 

"Another  error,  common  amongst  the  lower  orders,  is,  that  a  man  may  lawfully 
sell  his  wife  to  another,  provided  he  deliver  her  over  with  a  halter  about  her  neck. — 
And  another,  that  a  woman's  marrying  a  man  under  the  gallows,  will  save  him  from 
the  execution.  '  While  we  lay  here  (New  York,  A.  D.  1784),  a  circumstance  happened 
which  I  thought  extremely  singular.  One  day,  a  malefactor  was  to  be  executed  on  a 
gallows,  but  with  a  condition  that  if  any  woman,  having  nothing  on  but  her  shift, 
married  the  man  under  the  gallows,  his  life  was  to  be  saved.  This  extraordinary 
privilege  was  claimed,  a  woman  presented  herself,  and  the  marriage  ceremony  was 
performed'  {Life  of  Oulandah  Equiano,  vol.  ii,  p.  224).— If  this  took  place,  our 
American  cousins  must  have  jumbled  the  two  popular  errors  together."— Bden, 
Parish  Registers,  154,  note.  Cf.  Beand,  op.  cit.,  Ill,  379;  also  Baeeington,  Observa- 
tions on  Our  Ancient  Statutes,  475,  who  traces  the  error  to  the  ancient  right  of  the 
woman  to  "appeal"  for  murder  of  her  husband. 


442  Matrimonial  Institutions 

As  a  matter  of  course,  frightful  abuses  grew  out  of  this 
system.  Registers  were  kept,  but  they  were  often  falsified 
and  .were  of  little  value  as  evidence.  False  oaths  by  the 
score  were  taken  by  parsons.'  Young  girls  were  abducted 
and  carried  before  some  clerical  scoundrel  of  the  Fleet  and 
forcibly  married  for  the  sake  of  the  fees.^  Persons  were 
enticed  by  "plyers"  or  touts'*  into  ale-houses,  made  drunk, 
and  married  while  in  this  condition.*  Of  course,  now  and 
then  a  case  of  unusual  flagrancy  attracted  the  attention  of 
the  public,  and  the  criminals  were  brought  to  justice.  But 
it  is  a  sad  commentary  on  the  moral  debasement  and  utter 
formalism  of  the  English  church  during  the  first  half  of  the 
eighteenth  century  that  no  serious  attempt  seems  to  have 
been  made  to  deprive  these  monsters  of  their  priestly  char- 
acter. The  existing  civil  laws  were  powerless  to  remedy  the 
evil.  The  Fleet  parson  could  practically  bid  them  defiance.^ 
In  the  lively  words  of  Friedberg,  "what  could  befall  him 
according  to   existing   legislation?     Ought    the    bishop   to 

1  Marriages  were  often  antedated  (see  especially  the  case  of  John  Mottram,  1717 : 
BCEN,  Fleet  Marriages,  11, 12,  note;  Ashton,  The  Fleet,  343,  344;  Feiedbeeg,  Ehe- 
schliessung,  337 ;  Tegg,  The  Knot  Tied,  204) ;  and  false  oaths  were  common.  The 
notorious  parson  Walter  Wyatt  complains  that  "  if  a  dark  or  plyer  tells  a  lye,  you 
must  vouch  it  to  be  as  true  as  ye  Gospel ;  and  if  disputed,  you  must  affirm  with  an 
oath  to  ya  truth  of  a  downright  damnable  falsehood.— Virtus  laudatur  &  alget."— 
BuEN,  op.  cit.,  7 ;  Ashton,  op.  cit.,  337.  The  Grub  Street  Journal,  July  20, 1732,  says: 
"  On  Saturday  last  a  Fleet  parson  was  convicted  before  Sir  Ric.  Brocas  of  forty-three 
oaths,  (on  the  information  of  a  plyer  for  weddings  there)  for  which  a  warrant  was 
granted  to  levy  41.  6s.  on  the  goods  of  the  said  parson;  but,  upon  application  to  his 
Worship,  he  was  pleased  to  remit  Is.  per  oath;  upon  which  the  plyer  swore  he  would 
swear  no  more  against  any  man  upon  the  like  occasion,  finding  he  could  get  nothing 
by  it."— BuEN,  op.  cit.,  7  n.  1;  also  in  Ashton,  op.  cit.,  338. 

2  In  1690  James  Campbell,  brother  of  the  Duke  of  Argyle,  caused  to  be  abducted 
and  then  married  Mrs.  Wharton.  For  managing  this  abduction  Sir  John  Johnston 
was  executed  at  Tyburn :  this  case  is  in  Reports  of  the  Historical  Manuscripts  Com- 
mission, V,  380,  XIII,  App.  V,  217.  Cf.  ibid.,  IV,  345,  for  a  case  of  abduction  in 
Ireland,  1801. 

3 On  the  tout  or  plyer  see  Buen,  op.  cit.,  7,  passim;  Ashton,  op.  cit,  337,  338,  344, 
350,  357;  Jeaffeeson,  op.  cit.,  II,  142, 143. 

*  Leckt,  Eng.  in  18th  Cent.,  I,  532;  Feiedbeeg,  op.  cit.,  339,  note. 

f>  Occasionally  someone  was  committed  for  complicity  in  procuring  Fleet  mar- 
riages: see  cases  in  Ashton,  op.  cit.,  379,  380;  and  at  least  one  Fleet  marriage  was 
declared  illegal:  General  Evening  Post,  June  |J,  1745:  Ashton,  op.  cit.,  382. 


Rise  op  Civil  Marriage  443 

remove  him  from  office  ?  That  had  already  occurred  when  he 
was  dragged  from  his  living  to  prison.  Ought  his  spiritual 
superior  to  have  him  locked  up?  He  was  already  a  prisoner. 
Should  he  be  mulcted  in  a  sum  of  money?  He  had  none.'" 
There  were  also  other  places  in  which  the  same  irregu- 
larities existed.^  Among  these  were  Tyburn,  the  Tower,' 
the  King's  Bench  prison,  and  a  chapel  in  Mayfair.  In  the 
latter  place  Rev.  Alexander  Keith,  whom  Horace  Walpole 
styles  the  "marriage  broker,"*  performed  each  year  on  the 
average  six  thousand  marriages,  while  in  the  neighboring 
church  of  St.  Anne  only  fifty  regular  contracts  were  solem- 
nized. We  can  easily  credit  the  statement  that  he  derived 
therefrom  a  "very  bishopric  of  revenue."^  When  finally 
the  Hardwicke  act  put  an  end  to  his  traffic,  he  declared,  with 
many  oaths,  that  he  would  not  be  outdone  by  the  bishops, 
but  would  buy  a  piece  of  ground  and  "under-bury  them."* 
Keith  himself  has  left  behind  what  Ash  ton  thinks  is  a  "plain 
unvarnished  tale"  of  Fleet  marriages.  In  a  pamphlet  written 
at  the  time  Lord  Hardwicke's  act  was  under  discussion  he 
says:  "As  I  have  married  many  thousands,  and,  consequently, 
have  on  these  occasions  seen  the  humour  of  the  lower  class 
of  people,  I  have  often  asked  the  married  pair  how  long 
they  had  been  acquainted;  they  would  reply,  some  more, 
some  less,  but  the  generality  did  not  exceed  the  acquaintance 
of  a  week,  some  only  of  a  day,  half  a  day,  etc Another 

1  Feiedbeeg,  op.  cit.,  337.  See  similar  remarks  in  Gally,  Considerations  upon 
Clandestine  Marriages,  28,  29. 

"  See  the  names  of  several  places  in  Burn,  Parish  Registers,  146. 

3  Land  had  put  an  end  to  these  irregular  marriages  in  the  Tower.  At  his  trial 
in  1644  he  was  for  this  accused  of  interfering  with  popular  liberty,  and  ably  defended 
himself  by  showing  the  legality  of  his  action:  Jeaffeeson,  op.  cit.,  II,  116,  117; 
Burn,  op.  cit.,  143  n.  2. 

*  Letters  of  Horace  Walpole,  II,  337  (Letter  to  George  Montagu,  Esq.). 

5  Lecky,  Eng.  in  18th  Cent.,  I,  531 ;  Feiedbeeg,  op.  cit.,  344 ;  Knight,  Hist,  of 
England,  V,  586;  cf.  Bden,  Fleet  Marriages,  143. 

^Letters  of  Horace  Walpole,  II,  337;  Buen,  op.  cit.,  145,  note;  Loed  Mahon, 
Hist,  of  England  (New  York,  1849),  II,  280.  On  Keith  see  Buen,  op.  cit.,  141-45; 
Jeaffeeson,  op.  cit.,  II,  158  ff. 


444  Matrimonial  Institutions 

inconvenience  which  will  arise  from  this  Act  will  be,  that  the 
expence^  of  being  married  will  be  so  great,  that  few  of  the 
lower  class  of  people  can  afPord;  for  I  have  often  heard  a 
Flete  parson  say,  that  many  have  come  to  be  married  when 
they  have  but  half-a-crown  in  their  pockets,  and  sixpence  to 
buy  a  pot  of  beer,  and  for  which  they  have  pawned  some  of 

their  cloaths I  remember  once  on  a  time,  I  was  at  a 

public  house  at  Radcliffe,  which  was  then  full  of  Sailors  and 
their  girls,  there  was  fiddling,  piping,  jigging,  and  eating; 
at  length  one  of  the  tars  starts  up"  and  swore  he  would  "be 
married  just  now,"  with  a  rough  jest.  "The  joke  took,  and 
in  less  than  two  hours  ten  couple  set  out  for  the  Flete.  I 
staid  their  return.  They  returned  in  coaches ;  five  women 
in  each  coach ;  the  tars,  some  running  before,  others  riding 
on  the  coach  box,  and  others  behind.  The  Cavalcade  being 
over,  the  couples  went  up  into  an  upper  room,  where  they 
concluded  the  evening  with  great  jollity.  The  next  time  I 
went  that  way,  I  called  on  my  landlord  and  asked  him  con- 
cerning this  marriage  adventure:  he  at  first  stared  at  me, 
but,  recollecting,  he  said  those  things  were  so  frequent,  that 
he  hardly  took  any  notice  of  them;  for,  added  he,  it  is  a 
common  thing,  when  a  fleet  comes  in,  to  have  two  or  three 
hundred  marriages  in  a  week's  time,  among  the  sailors."^ 

1  Not  the  least  evil  connected  with  the  Fleet  marriages  was  the  promotion  of 
unions  between  the  indigent  and  those  morally  unfit  for  the  marriage  relation :  see 
Bond's  speech  on  the  Hardwicke  act,  Cobbett,  Parliamentary  History,  XV,  46,  47. 
But,  of  course,  as  Ashton  suggests,  the  lighter  expense  may  have  induced  respectable 
people  to  seek  the  Fleet  parson,  or  otherwise  to  marry  privately.  "A  public  mar- 
riage had  come  to  be  a  very  expensive  afPair.  There  was  a  festival,  which  lasted 
several  days,  during  which  open  house  had  to  be  kept;  there  were  the  marriage 
settlements,  presents,  pin  money,  music,  and  what  not."— Ashton,  The  Fleet,  333, 
334,  who  also  quotes  Misson's  description  of  a  private  marriage  in  the  time  of 
William  III.    For  Misson's  account,  see  also  Jeaffeeson,  op.  cit.,  11, 109  ff. 

In  his  speech  against  the  Hardwicke  act  Mr.  Nugent,  to  show  how  "fond  our 
people  are  of  private  marriages,  and  of  saving  a  little  money,"  says  that  in  a  year 
six  thousand  were  married  in  Keith's  Chapel  as  against  fifty  in  the  neighboring  St. 
Anne's  Church,  in  a  populous  parish  and  convenient  for  private  marriages  by 
license,  though  the  difference  in  expense  was  only  8  or  10  shillings:  Cobbett, 
Parliamentary  History,  XV,  19;  cf.  ibid.,  41. 

2 Keith's  Observations  on  the  Act  for  Preventing  Clandestine  Marriages: 
Ashton,  The  Fleet,  363,  364;  also  in  Bukn,  Fleet  Marriages,  144, 145. 


I 


Rise  of  Civil  Marriage  445 

Several  other  interesting  descriptions  of  these  disgraceful 
"operations"  have  been  handed  down.  Such  are  the  sprightly 
verses  entitled  the  "Bunter's  Wedding;"'  and  especially  the 
realistic  account  of  the  abduction  of  her  friend  given  by  an 
anonymous  writer  in  the  Grub  Street  Journal  for  January 
15,  1735.^  But  the  most  eloquent  testimony  of  all  is  afforded 
by  the  Fleet  registers,  many  of  which  are  still  preserved,' 
The  notes  appended  to  the  entries  are  at  once  amusing  and 
very  suggestive.  The  following  examples  are  selected  from 
Burn: 

"N.  B.  they  had  liv*^  together  4  years  as  man  and  wife: 
they  were  so  vile  as  to  ask  for  a  Certifycate  to  be  antidated." 

"Quarrelsome  people." 

"N.  B.    they  wanted  an  antidate  from  45  to  41." 

"N.  B.  Both  y^  man  and  woman  were  exceeding  vile  in 
their  behaviour." 

"N.  B.  the  woman  was  big  w*^  child,  and  they  wanted  a 
Certifycate  antidated;  and  because  it  was  not  comply' d  with, 
they  were  abusive  w*^  a  Witness." 

"N.  B.  the  person  belonging  to  y®  house  aloud  me  only 
2^  out  of  8^." 

"Had  a  noise  foure  hours  about  the  money." 

"N.  B.   stole  a  silver  spoon." 

"Stole  my  cloathes  brush." 

"The  person  who  was  with  them  I  believe  knew  it  to  be 
a  made  marriage." 

"Her  eyes  very  black,  and  he  beat  about  y®  face  very 
much." 

1  This  "  poem,"  in  twenty  eight-line  stanzas,  is  given  by  Ashton,  op.  cit.,  369-72. 

2 Quoted  by  Bubn,  Fleet  Marriages,  14, 15,  note;  Ashton,  op.  cit.,  372-75;  also  by 
Feiedbebg,  Eheschliessung,  338,  339,  note;  and  Jeaffeeson,  op.  cit.,  II,  176, 177. 

3  On  the  preservation  of  the  Fleet  registers  see  Ashton,  op.  cit.,  382-88;  Buen, 
op,  cit.,  66  flf. ;  Hammick,  Marriage  Law,  11,  12;  and  Whitakeb,  in  the  Cornhill 
Magazine,  May,  1867.  By  3  and  4  Vict.,  c.  92,  the  Fleet  and  Mayfair  registers,  twelve 
hundred  books  of  various  sizes,  are  deposited  in  the  office  of  the  registrar-general 
at  Somerset  House  (HAUtacE,  op.  cit.,  12). 


I 


446  Matrimonial  Institutions 

"The  woman  ran  across  Ludgate  Hill  in  her  shift.    10^'" 
"N.  B.    A  coachman  came  and  was  half  married,   and 
wou'd  give  but  3^  Q^  and  went  off."  ^ 

Long  before  the  middle  of  the  eighteenth  century  it  is 
very  clear  there  was  crying  need  of  thoroughgoing  reform 
in  the  marriage  laws  of  England.  To  the  surviving  dis- 
orders arising  in  mediaeval  theory  had  come  new  ones  of 
more  modern  growth.  For,  besides  the  shameful  irregu- 
larities of  the  Fleet,  clandestine  contracts,  either  through 
the  help  of  "hedge  parsons"^  or  else  by  simple  agreement 
of  the  parties,  illegal  but  not  invalid,  were  still  freely  prac- 
ticed throughout  the  kingdom.  From  1666  onward  during 
the  seventeenth  and  eighteenth  centuries  efforts  were  re- 
peatedly made  to  provide  a  remedy  by  legislation;  but  no 
bill  succeeded  in  passing  both  houses  of  Parliament.*     The 

1  An  example  of  the  "  smock  "  marriage ;  see  p.  441  n.  3,  above. 

2  For  these  entries  see  Buen,  Parish  Registers,  153-55;  and  there  are  many 
others  in  idem,  Fleet  Marriages,  73  ff. 

3  Hammick,  Marriage  Law  of  Eng.,  11. 

*  See  the  chronology  of  these  bills  to  prevent  clandestine  marriages  in  Feied- 
BEKG,  Eheschliessung,  34&-48 ;  and  compare  Buen,  Fleet  Marriages,  11  £f .  Three  of 
them  introduced  respectively  in  1677, 1685,  and  1691,  may  be  found  in  the  Reports  of 
the  Historical  Manuscripts  Commission,  IX,  App.  II,  91-99;  XI,  App,  II,  276-80;  XIII, 
App.  V,  253  ff.  The  first  declares  that  "  notwithstanding  all  provisions  by  law  .... 
several  minors  have  ....  been  clandestinely  married  without  consent  of  parents, 
and  other  irregular  marriages  have  been  made ;  "  therefore  it  is  enacted  that  it 
"  shall  not  be  in  the  power  of  any  son,  being  under  the  age  of  twenty-one  years,  nor 
....  of  any  daughter  ....  under  ....  eighteen,  to  marry  ....  or  to  make  a 
matrimonial  contract  of  any  kind  whatsoever;"  except  the  father  or  guardian 
"  shall  have  given  consent  in  writing  attested  by  two  credible  witnesses  at  the  least, 
....  or  shall  be  present  and  consenting  thereto,"  under  penalty  of  nullity  of  the 
marriage.  After  the  death  of  father  and  mother,  the  same  restriction  is  put  upon 
the  contracts  of  males  under  eighteen  and  females  under  fourteen  without  the 
guardian's  consent.  "  If  any  guardian  shall  be  privy  to  any  such  pretended  mar- 
riage," he  shall  lose  "all  his  right,  title,  and  interest  to  the  custody  of  any  such 
minors "  and  "  shall  also  forfeit  one  moiety  of  his  whole  estate,  both  real  and 
personal,"  one-half  to  the  king  and  the  other  to  the  informer.  If  "  any  domestic  or 
menial  servant  shall  make  any  pretended  marriage  or  matrimonial  contract"  with 
"any  of  the  children  or  pupils  of  his  or  her  mistress  during  their  minority,  and  in 
such  manner  as  ....  is  by  this  act  declared  to  be  ...  .  null  and  void,"  such 
servant  shall  suffer  three  years'  imprisonment.  "  Every  ecclesiastical  person  who 
celebrates  such  a  marriage  or  any  marriage  whatsoever  whereof  the  banns  had  not 
been  published  as  required  by  the  ecclesiastical  law,  shall  be  adjudged  deprived 
ipso  facto  of  all  benefices,  dignities,  pensions,  and  spiritual  promotions  which  he 


KisE  OF  Civil  Marbiage  447 

legislation  of  William  and  Anne,  already  referred  to,  proved 
an  encouragement  rather  than  a  hindrance  to  clandestine 
unions.  The  rivalry  of  the  prisons,  "lawless"  churches,  and 
the  regular  Fleet  chaplain  was  thus  removed ;  conviction  for 
breach  of  the  statutes  was  rendered  exceedingly  difficult; 
and  the  increased  expense  caused  by  the  tax  upon  licenses 
favored  the  business  of  parsons  who  were  ready  to  "solem- 
nize" marriages  at  low  rates  and  without  troublesome  or 
costly  conditions.'  Even  the  notorious  cases  of  Haagen 
Swendsen  in  1702  and  "Beau"  Feilding  in  1706,  though 
calling  sharp  attention  of  the  public  to  the  frightful 
dangers  lurking  in  the  matrimonial  laws,  were  not  enough 
to  quicken  the  conscience  of  the  nation.^  A  timely  edition 
of  Dr.  Gally's  sensible   book*  in   1750  did  something  to 

had  at  time  of  such  ofiFence  or  at  any  time  after."  Personating  a  priest  in  such 
cases  is  constituted  felony  without  benefit  of  clergy,  punishable  by  death.  For 
violating  the  act  in  the  issue  of  a  license,  the  offender  shall  forfeit  his  office  and  be 
incapable  of  holding  office  in  church  or  state.  The  bill  of  1691  is  very  similar  in  its 
provisions. 

'The  evil  results  of  these  blundering  statutes  are  vigorously  stated  by 
Jeapfeeson,  Brides  and  Bridals,  II,  167  ff.,  130  ff.,  84.  The  effects  of  7  and  8  W. 
III.,  were  especially  bad.  Before  its  enactment  "  it  was  in  the  power  of  any  rogue 
married  at  a  tavern-wedding  to  inform  against  the  officiating  clergyman,  without 
rendering  himself  liable  to  punishment  for  his  part  in  the  irregular  transaction. 
Any  clerk  or  other  person  who  assisted  at  a  marriage  without  license  or  banns,  could 
also  with  impunity  turn  informer  against  the  lawless  priest; "  but  by  placing  a  pen- 
alty on  all  these  persons  "the  mouths  of  individuals  who  were  best  qualified  and 
most  likely  to  give  conclusive  evidence  against  the  peccant  clergyman  "  were  closed : 
ibid.,  170, 171. 

2  For  these  cases  see  Howell,  State  Trials,  XIV,  559  ff.,  1327  ff.  The  facts  are 
summarized  by  Fkiedbeeg,  Eheschliessung,  344-46.  The  case  of  "  Barbara  late 
Dutchess  of  Cleaveland  "  against  Feilding,  with  much  concerning  Feilding's  other 
adventures,  may  be  found  in  Cases  of  Divorce  for  Several  Causes  (London,  1715). 
Elopement  with  heiresses  is  discussed  by  Ashton,  Social  Life  in  the  Reign  of  Queen 
Anne,  I,  29  ff.  Of  Haagen  Swendsen,  "  who  was,  in  1702,  convicted  and  executed  for 
stealing  Mrs.  Rawlins,"  he  says:  "Nowadays,  he  would  have  been  unhesitatingly 
acquitted,  even  if  he  had  ever  been  presented,  as  there  was  no  real  case  against  him, 
and  Mrs.  Rawlins  married  him  of  her  own  free  will." 

In  the  Report  of  the  Royal  Commission,  1S68,  xxi-xxiii,  it  is  estimated  that  one- 
third  of  all  the  marriages  in  the  eighteenth  century  were  "irregular;"  whereas, 
after  1834,  when  the  ministers  of  all  denominations  could  solemnize,  irregularity 
became  a  "stigma,"  the  number  of  such  contracts  now  (1868)  being  in  the  ratio  of 
1  to  1,000. 

3  Gally,  Some  Considerations  upon  Clandestine  Marriages  (2d  ed.,  London,  1750) . 
The  first  edition  of  this  work  appeared  in  1730.    It  is  strong  evidence  of  the  slow 


448  Matrimonial  Institutions 

educate  the  public  mind;  and  finally  in  1753  the  celebrated 
case  of  Cochrane  v.  Campbell/  originating  in  Scotland,  came 
in  the  last  instance  before  the  House  of  Lords.  The  validity 
of  a  marriage  which  had  been  legally  celebrated  and  which 
had  continued  for  nearly  thirty  years  was  challenged  on 
account  of  previous  secret  sponsalia  de  praesenti.  Save 
for  lack  of  evidence  of  the  alleged  prior  contract,  "the  wife 
who  in  true  love  during  so  long  a  time  had  been  devoted 
to  her  husband,  though  already  dead,"  would  have  been 
"degraded  to  the  position  of  a  concubine,  the  children 
begotten  in  marriage  branded  as  bastards,  and  robbed  of 
their  inheritance."^  This  case  proved  to  be  the  proximate 
cause  of  the  passage  of  the  famous  Hardwicke  act  of  1753. 
On  January  81  of  that  year,  on  motion  of  Lord  Bath,  the 
House  of  Lords  decided  to  bring  in  a  "Bill  for  the  better 
preventing  of  Clandestine  Marriage."  The  drafting  of  the 
bill  was  intrusted  to  the  twelve  judges,  but  the  draft  pre- 
sented by  them  was  so  imperfect,  that  the  chancellor.  Lord 
Hardwicke,  undertook  its  thorough  revision.^ 

With  little  resistance  the  revised  bill  was  readily  passed 

progress  of  opinion  on  social  questions  that,  a  century  after  the  enlightened  legisla- 
tion of  Cromwell,  the  author  should  have  found  it  necessary  to  enter  into  an 
elaborate  argument  to  establish  the  right  of  the  state  to  make  the  observance  of 
prescribed  forms  and  conditions  essential  to  a  valid  marriage.  Sec.  1  assigns 
"  some  general  reasons  for  a  law  to  annul  clandestine  marriages ; "  sec.  ii  presents 
"  what  the  civil  law  has  done  on  this  subject ; "  sec.  iii  shows  "  what  has  been  done 
in  France ; "  and  in  sec.  iv  six  objections  to  the  adoption  of  such  a  law  are  answered. 
Dr.  Gally's  book  was  referred  to  in  the  debates  on  the  Hardwicke  act. 

1  Cochrane  alias  Kennedy  v.  Campbell ;  Paton's  Reports  of  Cases  decided  in  the 
House  of  Lords  on  Appeal  from  Scotland,  I  (1726-57),  519-32;  and  Wilson  and 
Shaw's  Cases,  III,  135,  note.  The  appeal  of  the  claimant  was  dismissed  by  the  Lords 
for  want  of  evidence;  and  only  on  this  ground  was  that  tribunal  spared  the 
cruel  necessity  of  declaring  void  the  marriage  of  persons  who  for  many  years  had 
lived  together  openly  as  husband  and  wife.  There  are  notices  of  the  case  in 
Walpole,  Memoirs  of  the  Beign  of  George  II.  (2d  ed.,  1847),  I,  336  fE. ;  Cobbett,  Par. 
History,  XV,  8 ;  Jeaffeeson,  Brides  and  Bridals,  II,  181. 

2  Friedbeeg,  Eheschliessung,  349.  Friedberg  states  erroneously  that  the  Lords 
declared  the  marriage  void. 

3  "Lord  Bath  invented  this  Bill,  but  had  drawn  it  so  ill,  that  the  Chancellor 
was  forced  to  draw  a  new  one  —  and  then  grew  so  fond  of  his  own  creature,  that  he 
has  crammed  it  down  the  throats  of  both  Houses,  though  they  gave  many  a  gulp 
before  they  could  swallow  it."— Walpole  to  Conway,  May  24,  1753:  Horace 
Walpole's  Letters,  II,  334-36;  also  in  Cobbett,  Parliamentary  History,  XV,  33. 


Rise  of  Civil  Marriage  449 

through  the  Lords,  the  bishops  even  yielding  their  assent. 
But  in  the  Commons  it  came  to  its  final  passage  on  June  6, 
1753,  only  after  a  long  and  stormy  contest.  The  press  and 
the  people  participated  in  the  excitement;'  and  the  tenacity 
of  the  old  custom  of  private  espousals  is  shown  by  the  fact 
that  the  large  majority  of  the  latter  were  opposed  to  the 
measure,  though  this  may  in  part  be  accounted  for  on 
the  ground  of  its  intolerance  toward  the  dissenters.  In 
the  lower  house  the  bill  was  ably  supported  by  Attorney- 
General  Ryder,  Lord  Barrington,  the  Earl  of  Hillsborough, 
Solicitor-General  Murray,  and  by  Mr.  John  Bond  whose 
speech  is  remarkable  for  its  strong  argument  and  sober 
common-sense.  Most  prominent  on  the  other  side  were  Mr. 
Nugent,  Colonel  George  Haldane,  Charles  Townshend,  and, 
in  particular,  Henry  Fox  who  in  1744  had  himself  contracted 
a  clandestine  marriage  in  the  Fleet  with  the  daughter  of  the 
Duke  of  Richmond.^  Another  bitter  antagonist  of  the  bill 
was  Horace  Walpole,  "two  members  of  whose  family  were 
known  to  have  entered  matrimony  by  uncanonical  wedlock, 
and  one  of  whose  nieces,  several  years  after  the  enactment  of 
Lord  Hardwicke's  Marriage  Bill,  became  the  bride  of  the  most 
famous  Fleet  marriage  on  record."*     The  arguments  in  sup- 

1  For  contemporary  discussions  see  Gentleman's  Magazine,  XXIII,  399,  400,  452, 
453,  538;  XXIV,  145;  XXV,  212;  Monthly  Review,  XII,  111  ff.,  438-46  (notices  of  various 
pamphlets  including  some  by  Dr.  Stebbing) ;  ibid.,  XIII,  92-95,  394  ff.;  XVI,  371; 
XXXII,  233;  XL,  226,  425-56.  Compare  Feiedbeeg,  Eheschliessung,  352  n.  1,  who  gives 
the  titles  of  several  pamphlets  relating  to  the  act;  Madan,  Thelyphthora,  11,38-90, 
"cannot  mention  or  even  think"  of  it  "without  indignation,"  because  it  "strikes 
at  a  divine  institution." 

2BDKN,  Fleet  Marriages,  16;  Tegg,  The  Knot  Tied,  206.  For  the  debates  in  the 
Commons  see  Cobbett,  Parliamentary  History,  XV,  2-86;  and  compare  the  excellent 
analysis  by  Feiedbekg,  Ehcschliessung,  350-52;  also  Horace  Walpole,  Lc^/ers,  II, 
334-36;  idem.  Memoirs  of  George  II.,  I,  336-49;  Bden,  Parish  Registers,  32,  33;  idem. 
Fleet  Marriages,  16  ff.,  22-31  (entire  account  of  Lord  Orford  quoted) ;  Lecky,  E7ig.  in 
18th  Cent.,  I,  539;  idem.  Democracy  and  Liberty,  II,  174-77;  Spencer  Walpole,  HiM. 
ofEng.,  IV,  69,  70;  Knight,  Hist,  of  Eng.,Y,  585;  Lord  Mahon,  Hist.ofEng.,  II,  280- 
82;  Hammick,  Marriage  Law,  12, 13;  and  Oppenheim,  "  Die  Verhandlungen  des  Eng, 
Parliaments  fiber  Einffihrung  der  Civil-Ehe,"  ZKR.,  I,  9  ff.,  14, 15,  20-22. 

3  Jeaffreson,  Brides  and  Bridals,  II,  183, 174,  175,  note.  Royal  marriages  were 
not  comprehended  by  the  Hardwicko  act ;  hence  irregular  marriages  of  royal  persons 
were  still  legal.  On  September  6,  1766,  in  a  mansion  in  Pall  Mall,  Maria,  Countess- 
Dowager  of  Waldgrave,  niece  of  Horace  Walpole,  contracted  a  claudostino  marriage. 


450  Matrimonial  Institutions 

port  of  the  measure  are  direct,  practical,  and  convincing; 
those  of  its  opposers  for  the  most  part,  except  as  directed  to 
faults  of  detail,  seem  captious,  forced,  or  even  frivolous, 
when  looked  at  in  the  light  of  modern  experience.  When 
they  saw  that  the  bill  was  likely  to  pass,  they  sought  to  make 
it  obnoxious  by  mutilation  and  amendment.' 

In  favor  of  the  measure  the  notorious  scandals  and  hard- 
ships caused  by  clandestine  contracts  are  dwelt  upon.  "How 
often,"  exclaims  the  Attorney-General,  "have  we  known  a 
rich  heiress  carried  ofp  by  a  man  of  low  birth,  or  perhaps  by 
an  infamous  sharper?  What  distress  some  of  our  best 
families  have  been  brought  into,  what  ruin  some  of  their 
sons  or  daughters  have  been  involved  in,  by  such  means, 
every  gentleman  may  from  his  own  knowledge  recollect."^ 
The  bill,  it  is  urged,  provides  an  effective  remedy  for  the 
evil.  This  remedy  is  publicity ;  and  it  can  be  secured  only 
by  making  banns  or  license,  with  parental  consent,  followed 
by  a  solemn  public  celebration  at  the  proper  time  and  place, 
the  absolute  condition  of  a  valid  marriage.  The  practical 
success  of  such  a  system  is  proved  by  reference  to  Dutch 
experience.  For  the  law  of  Holland  is  even  stricter  than 
the  proposed  measure.     "In  Holland,"  says  Mr.  Bond,  "a 

without  witnesses,  banns,  license,  or  record,  with  the  Duke  of  Gloucester,  brother  of 
George  III.  Her  private  chaplain  performed  the  ceremony;  hence,  except  in  form, 
this  was  not  strictly  a  Fleet  marriage.  A  few  years  later,  on  Oct.  2, 1771,  another 
brother  of  the  king,  the  Duke  of  Cumberland,  formed  a  similar  irregular  alliance 
with  Anne  Horton;  but  in  this  case  there  were  a  witness  and  a  memorandum.  Both 
marriages  were  declared  legal  by  a  special  commission:  see  the  chapter  of 
Jeaffeeson,  on  "  Two  Koyal  Marriages,"  op.  cit.,  II,  234-49. 

1  All  the  amendments  "  were  designed  to  aggravate  the  aversion  which  the  popu- 
lace had  conceived  for  a  measure  that  appeared  to  them  an  attempt  to  deprive  them 
of  cheap  and  convenient  marriage,  with  a  view  to  preserve  the  children  of  the  aris- 
tocracy from  the  misfortune  of  premature  and  imprudent  matrimony The 

main  object  of  the  bill  was,  in  the  first  instance,  to  abolish  the  law  of  matrimonial 
pre-contract  throughout  the  kingdom."  Therefore  Henry  Fox,  to  render  it  unsatis- 
factory to  its  promoters  and  "  so  ridiculous  to  the  whole  country,"  managed  to  have 
Scotland  exempted  from  the  operation  of  the  law,  although  the  suit  which  gave  rise 
to  the  measure  originated  there:  Jeaffeeson,  op.  cit.,  II,  183ff. ;  cf.  Buen,  Fleet 
Marriages,  19. 

2  COBBETT,  Par.  Hist.,  XV,  .3.    Cf.  similar  expressions  by  Mr.  Bond,  ibid.,  41  ff. 


Rise  op  Civil  Marriage  451 

regular  proclamation  of  banns  ....  is  so  necessary,  that  a 
marriage  without  it  is  absolutely  void,  without  any  decree 
or  sentence  of  any  court  for  declaring  it  so;"  and  after 
publication  the  parties  must  be  "married  in  the  church  or 
chapel  of  the  religion'  to  which  they  belong;  neither  of 
which  can  be  dispensed  with  but  by  the  supreme  court  of 
Holland  with  respect  to  the  nobility,  or  by  the  supremo 
magistrate  of  their  city  with  respect  to  the  other  inhabitants ; 
so  that  ....  no  license  can  be  granted,  either  as  to  the 
proclamation  of  banns,  or  as  to  not  being  married  at  church, 
by  any  ecclesiastical  court  whatsoever."^  Nor  does  the  state 
overstep  its  proper  authority  when  a  marriage  is  rendered 
void  for  neglect  to  observe  its  prescribed  forms.  No  violence 
is  thus  done  to  the  "sanctity"  of  the  marriage  bond;  for  the 
canonical  doctrine  of  the  sacramental  or  indissoluble  nature 
of  matrimony  is  not  sustained  by  an  appeal  either  to  history 
or  to  common-sense.^  "I  think  it  is  ridiculous  to  say," 
declares  one  speaker,  "that  infants  shall  have  a  power,  when 
they  come  of  age,  to  avoid  and  annul  every  contract  they 
made,  while  under  age,  without  the  consent  of  their  parents 

1  Mr.  Bond  appears  in  this  statement  to  be  somewhat  in  error ;  for  optional  civil 
marriage  existed  in  the  Netherlands  since  1656 :  see  p.  409,  above. 

2  Speech  of  Mr.  Bond,  in  Cobbett,  op.  cit.,  XV,  43,  44.  Townshend  (ibid.,  57,  58) 
replies  to  the  argument  based  on  the  laws  of  the  Dutch.  The  people  and  the  insti- 
tutions are  very  different  from  the  English  and  therefore  afford  no  precedent.  "  In 
Holland  not  only  every  province  but  every  town  is  a  sort  of  sovereignty  within  itself ; 
and  their  religion,  especially  with  regard  to  marriage,  is  much  the  same  as  it  was  in 
this  country  in  the  days  of  Oliver  Cromwell,  when  neither  the  marriage  contract,  nor 
the  ceremony  was  supposed  to  have  any  sanctity  or  religion  in  its  nature."  Then 
follows  this  delicious  bit  of  comparison :  "  The  Dutch,  sir,  are  naturally  a  cool, 
patient  people,  and  not  given  to  sudden  changes,  either  in  their  tempers  or  passions; 
therefore  the  rendering  a  proclamation  of  banns  necessary  may  do  very  well  in  that 
country;  but  in  this,  where  the  people  are  naturally  sanguine,  impatient,  and  as  apt 
to  change  as  the  air  they  breathe,  I  am  convinced  that  such  a  regulation  would  be 
the  cause  of  nvimberless  mischiefs." 

3  Fox  (Cobbett,  loc.  cit.,  73)  deprecates  "  making  so  free  with  the  laws  of  God 
and  nature."  See  also  Nugent  (ibid.,  12-14)  and  Beckford  (.ibid.,  82,  83).  On  the 
other  side,  the  Earl  of  Hillsborough  asks  whether  even  the  "  vulgar  can  believe,  that 
there  is  anything  sacred  in  a  ceremony  performed  in  a  little  room  of  an  ale-house  in 
the  Fleet,  and  by  a  profligate  clergyman  whom  they  see  all  in  rags,  swearing  like  a 
trooper  and  higgling  about  what  he  is  to  have  for  his  trouble,  and  half  drunk  at  the 
very  time  he  is  performing  the  ceremony." 


452  Matrimonial  Institutions 

or  guardians,  and  yet  if  without  consent  of  father  or  mother, 
or  guardian,  they  dispose  of  themselves  and  every  thing  that 
belongs  to  them  in  marriage  whilst  under  age,  they  shall 
have  no  power  to  avoid  that  contract  when  they  come  of  age, 
let  it  be  never  so  fraudulent,  pernicious  or  infamous.  This 
is  adding  a  sanctity  to  the  marriage  contract,  which  is 
inconsistent  with  the  good  of  every  society,  and  with  the 
happiness  of  mankind  in  general."  * 

On  the  other  side,  every  merit  claimed  for  the  bill  by  its 
friends  is  changed  into  a  fault.  The  evil  of  secret  espousals 
is  minimized  or  even  denied.  Charles  Townshend,  whose 
argument  is  singularly  forced  and  superficial,  boldly  asserts 
that  "clandestine  marriages  cannot  properly  in  themselves 
be  called  a  public  evil,  and  as  they  are  of  different  kinds, 
they  ought  to  have  a  different  consideration."  There  are,  he 
says,  four  varieties.  Those  that  are  equal  both  as  to  rank 
and  fortune  "cannot  be  called  a  public  evil,  because  they  are 
generally  the  most  happy,  and  such  as  parents  ought  to 
approve  of,  and  would  approve  of,  if  not  governed  by  some 

whim  or  caprice As  to  those  that  are  unequal  with 

respect  to  fortune,  they  are  so  far  from  being  a  public  evil, 
that  they  are  a  public  benefit,  because  they  serve  to  disperse 
the  wealth  of  the  kingdom  through  the  whole  body  of  the 
people,  and  to  prevent  the  accumulating  and  monopolizing  it 
into  a  few  hands;  which  is  an  advantage  to  every  society, 
especially  a  free  and  trading  society.  The  same  may  be 
said  of  clandestine  marriages  that  are  unequal  both  as  to 
rank  and  fortune,"  for  they  are  still  more  leveling  in  their 
effects;  as  when  "a  lord  of  good  estate"  marries  "a  taylor's 
or  a  shoemaker's  daughter  of  good  character,  though  not 

1  Ryder,  in  Cobbett,  loc.  cit.,  6,  7.  Cf.  the  speech  of  Lord  Barrington,  ibid., 
27,  28,  who  thinks  the  state  as  much  justified  in  requiring  that  a  marriage  to  be 
valid  shall  depend  upon  the  observance  of  certain  prescribed  forms,  as  it  is  in 
demanding  that  a  legally  binding  oath  shall  be  taken  before  duly  authorized 
persons.  These  arguments  are  criticised  by  Nugent  {ibid.,  22,  23)  and  by  Beckford 
{ibid.,  82,  83). 


Rise  op  Civil  Marbiage  453 

worth  a  groat,"  or  a  "lady  of  quality,  entitled  to  a  good 
estate,"  marries  such  a  man's  son  who  is  honorable  but  poor. 
Such  marriages  are  a  public  blessing.  "Nay  I  will  go  far- 
ther," he  adds,  "such  marriages  seldom,  if  ever,  bring  shame 
or  misery  upon  the  contracting  parties,"  Only  the  secret 
marriages  which  are  properly  called  "scandalous  and  infa- 
mous" are  a  public  evil;  such  as  are  entered  into  between  a 
gentleman  of  character  and  an  abandoned  woman,  or  between 
a  reputable  lady  and  "a  notorious  rogue  or  common  sharper." 
But  "how  rarely  do  such  infamous  marriages  happen,  espe- 
cially with  respect  to  those  under  age."*  In  fact,  throughout 
the  argument  of  the  opposition  every  change  is  rung  on  the 
objection  that  the  bill  is  aristocratic  and  plutocratic  in  its 
motive.  Elopement,  even  through  the  connivance  of  a  Fleet 
parson,  is  practically  elevated  into  the  chief  security  of 
democracy  and  the  necessary  safety-valve  of  human  passion. 
Should  the  bill  pass  and  the  advantage  of  secretly  contract- 
ing a  valid  marriage  be  thus  taken  away,  the  nobility  "will 
in  a  great  measure  secure  all  the  great  heiresses  in  the  king- 
dom to  those  of  their  own  body.  An  old  miser,  even  of  the 
lowest  birth,  is  generally  ambitious  of  having  his  only  daugh- 
ter married  to  a  lord,  and  a  guardian  has  generally  some 
selfish  view,  or  some  interest  to  serve,  by  getting  his  rich 
ward  married  to  the  eldest  son  of  some  duke,  marquiss,  or 
earl ;  so  that  when  a  young  commoner  makes  his  addresses 
to  a  rich  heiress,  he  has  no  friend  but  his  superior  merit,  and 
that  little  deity  called  love,"  whose  counsel,  but  for  the  pro- 
posed law,  she  may  harken  to  in  tender  youth,  but  whose 
influence  over  her  decreases  "as  she  increases  in  years;  for 
by  the  time  she  comes  of  age,  pride  and  ambition  seize  pos- 
session of  her  heart  likewise;"  so  that  as  a  result  hereafter,  if 
the  bill  pass,  "no  commoner  will  ever  marry  a  rich  heiress, 
unless  his  father  be  a  minister  of  state,  nor  will  a  peer's 

iTownshend,  in  Cobbett,  loc.  cif.,  51-53. 


454  Matbimonial  Institutions 

eldest  son  marry  the  daughter  of  a  commoner,  unless  she  be 
a  rich  heiress.'"  Furthermore,  close  intermarrying  among 
the  rich  and  noble  will  cause  degeneration.  "What  sort  of 
breed  their  offspring  will  be,  we  may  easily  judge :  if  the 
gout,  the  gravel,  the  pox,  and  madness  are  always  to  wed 
together,  what  a  hopeful  generation  of  quality  and  rich  com- 
moners shall  we  have  amongst  us,"  Then,  too,  a  social  caste 
will  be  developed  in  England,  such  as  the  distinction  between 
noblesse  and  roturiers  abroad,  especially  in  France,  where 
the  marriages  of  the  "quality"  are  something  like  those  of 
"sovereign  princes:  the  bride  and  bridegroom  sometimes 
have  never  seen  one  another,  till  they  meet  to  be  married;" 
hence  in  that  country  gallantry  has  taken  the  place  of  "con- 
jugal love  and  fidelity."^  Nay,  the  sinister  effects  of  the 
proposed  measure  in  this  regard  are  not  exhausted  even  by 
this  dark  prophecy.  Coming  to  the  rescue,  another  ingen- 
ious logician  shows  conclusively  that  through  the  increase  of 
wealth,  which  means  political  power,  the  lords,  following  the 
Venetian  example,  may  overmaster  the  commons,  subvert 
the  free  constitution,  and  set  up  a  despotic  oligarchy  in  its 
place.* 

But  the  obstacles  placed  by  the  bill  in  the  way  of  free 
wedlock  will  have  still  other  disastrous  consequences. 
Marriage  will  be  discouraged  among  the  lower  orders, 
particularly  the  industrious  poor,  while  at  the  same  time 
immorality  through  illicit  unions  will  be  vastly  increased. 
The  state  will  thus  suffer  through  the  check  put  upon  the 

1  The  bill  is  to  bring  upon  the  people  all  these  evils  "  that  my  young  lord,  or  the 
young  rich  squire,  forsooth,  may  not  be  induced  to  marry  his  mother's  maid,  or  a 
neighbouring  farmer's  daughter,  who  may  probably  make  him  a  better  wife  and  ren- 
der him  more  happy,  than  if  he  had  married  the  richest  heiress  in  the  kingdom;  or 
that  young  miss  may  not  run  away  with  her  father's  footman,  who  may  make  her  a 
better  husband,  than  any  lord  or  rich  squire  she,  or  even  her  father,  could  have 
chosen."  Such  marriages  "  are  rather  an  advantage  than  a  prejudice  to  the  com- 
munity."—Nugent,  in  COBBETT,  loc.  cit.,  20;  cf.  Fox,  ibid.,  71. 

2  Nugent,  in  Cobbett,  loc.  cit.,  15, 16;  cf.  the  similar  argument  of  Fox,  ibid.,  68, 69. 
3Haldane,  in  Cobbett,  loc.  cit.,  35-39;  cf.  Townshend,  ibid.,  61. 


Rise  of  Civil  Marriage  455 

growth  of  its  best  population.'  For  the  bill  not  only  places 
tyrannical  power  in  the  hands  of  parents  or  guardians  by 
making  their  consent  necessary  to  a  valid  marriage,''  but 
passionate  lovers  even  when  of  full  age  will  not  wait  for  the 
publication  of  banns,  while  the  poor  will  be  unable  to  pay 
for  a  license.^  The  proposed  law,  according  to  Haldane, 
"will  really  prove  a  sort  of  prohibition  of  marriage  with 
respect  to  all  our  poorer  sort  of  people,  because  it  will 
render  the  solemnization  of  that  ceremony  so  tedious  and 
troublesome,  or  so  expensive,  that  many  of  them  will  chuse 
to  live  single,  or  agree  to  live  together  without  any  marriage 
at  all.  We  know  how  averse  our  people  generally  are  to  a 
proclamation  of  banns,  even  in  the  present  method,  when  in 
any  of  our  holiday  weeks  the  whole  may  be  performed,  and 
the  loving  couple  made  happy  ....  in  three  or  four  days; 
how  much  more  averse,  then,  will  they  be  in  this  way  of 
marrying,  when  they  must  give  a  week's  notice  before  the 

1  This  argument  is  also  used  by  a  writer  in  the  Monthly  Review,  XL,  425, 426,  who 
makes  a  violent  attack  on  the  bill:  "Sir  Robert  Walpole "  is.declarcd  to  be  "the 
first  fool  of  a  statesman  who  thought  a  kingdom  might  be  too  populous"  (426). 

Mr.  Nugent,  in  the  Commons,  appears  to  think  that  increase  of  population 
among  the  poor  must  be  promoted  at  all  hazards.  Even  the  judicially  enforced 
marriages  between  wenches  and  their  reluctant  seducers  are  blessings  which  he 
fears  the  bill  will  put  an  end  to:  Cobbett,  op.  cit.,  XV,  18.  With  these  conceits  of 
the  opposition  compare  the  sound  views  of  the  Earl  of  Hillsborough  (ibid.,  63): 
"  Poor  servants  and  labourers  ....  are  but  too  apt  to  run  into  matrimony,  before 
they  have  considered  how  they  are  to  support  either  themselves  or  their  children 
.  .  .  .  ;  for  the  prosperity  and  happiness  of  a  country  does  not  depend  upon  having 
a  great  number  of  children  born,  but  upon  having  always  a  great  number  well 
brought  up,  and  inured  from  their  infancy  to  labour  and  industry."  Essentially 
modern  opinions  are  likewise  expressed  by  Mr.  Bond:  "For  as  to  those  rash  and 
inconsiderate  marriages  ....  between  two  poor  creatures,  sometimes  before  they 
have  got  clothes  to  their  backs"  or  a  lodging  or  means  of  support,  "I think  they 
ought  all,  if  it  were  possible,  to  be  prevented."  Fleet  marriages,  he  believes,  have 
propagated  "  beggars,  rogues,  and  the  most  abandoned  sort  of  prostitutes ;  "  and  ho 
appeals  to  the  stricter  laws  of  Holland  which  have  not  checked  the  growth  of  an 
industrious  population :  ibid.,  46,  47. 

2  A  writer  in  the  Monthly  Review,  XII,  11.'5,  speaks  of  the  "  minor's  inalienable 
right  to  marriage  as  the  proper  remedy  for  chastity." 

3  According  to  Mr.  Haldane,  banns  are  required  by  the  bill  "  in  order  to  render 
licenses  necessary ;  and  the  only  use  of  a  license  I  take  to  be  that  of  putting  money 
into  the  pockets  of  our  clergymen  or  some  of  their  officers." — Cobbett,  op.  cit.,  XV, 
40.    On  the  too  high  cost  of  licenses  cf.  Townshend,  ibid.,  57,  58;  and  Fox,  ibid.,  70. 


456  Matrimonial  Institutions 

banns  can  be  first  proclaimed,  and  after  that  must  wait  above 
three  weeks  before  the  proclamation  ....  can  be  finished 
and  the  marriage  ceremony  performed?"  The  natural 
result  will  be  the  increase  of  sexual  vice.'  Townshend  pre- 
sents a  similar  argument,  though  some  of  his  forebodings 
were  fully  justified  by  future  events.  The  bill  instead  of 
preventing  polygamy — by  which  he  means  bigamy — will 
encourage  it;  "for  it  prescribes  so  many  formalities  for 
rendering  a  marriage  good  and  valid  in  law,  that  a  cunning 
fellow  will  always  take  care  to  have  some  of  them  omitted," 
so  that  he  cannot  be  convicted  of  a  breach  of  the  statute. 
Marriage  will  still  be  difficult  of  proof  ;  and  by  encouraging 
false  promises  of  marriage  the  bill  sets  a  cruel  snare  for  the 
feet  of  the  innocent.^  "As  the  law  now  stands,  if  a  treacher- 
ous young  fellow  should  refuse  to  perform  such  a  promise, 
the  young  woman  who  trusted  to  it  may  sue  him  in  an 
ecclesiastical  court,  where  she  may  put  him  on  his  oath,  and 
if  he  confesses  the  promise,  or  she  can  otherwise  prove  it, 
he  must  either  marry  her,  or  be  imprisoned  upon  the  writ 
de  excommunicato  capiendo.''''  But  under  the  proposed  act 
"she  can  have  no  relief:  the  statute  of  frauds  and  perjuries 
will  be  a  bar  to  her  action  at  common  law,  unless  she  has 
been  so  cautious  as  to  take  a  promise  in  writing;  even  then, 
if  he  was  under  age,  his  nonage  will  be  a  bar  to  her  action; 
and  suppose  him  of  age" — and  here  the  distinguished  mem- 
ber of  the  House  of  Commons  takes  a  tone  which  like  a 
flash  reveals  the  political  torpor  of  the  English  people  and 
of  the  Whig  oligarchy  of  George  II. — "she  must  submit  to 

1  Haldane,  in  Cobbett,  loc.  cit,,  39.  He  continues :  "  In  my  opinion  the  certain 
consequence  will  be  that  of  rendering  common  whoring  as  frequent  among  the 
lower  sort  of  people,  as  it  is  now  among  those  of  the  better  sort ;  and  multitudes  of 
wenches  in  all  parts  of  the  country,  when  they  find  they  cannot  get  husbands  accord- 
ing to  law,  will  set  up  the  trade ;  so  that  the  Bill  ought  really  to  be  called  a  Bill  for 
the  increase  of  fornication  in  this  kingdom."— I6id.,  39.  Cf.  the  similar  arguments 
of  Nugent  {ibid.,  17, 18),  Townshend  {ibid,,  55,  58),  Fox  [ibid.,  68-70),  and  Beckford 
(i6id.,  80-82). 

2  Compare  the  statements  of  Nugent,  in  Cobbett,  loc.  cit.,  21. 


Rise  of  Civil  Marriage  457 

have  a  price  put  upon  her  honor  and  virtue  by  a  jury  of 
tradesmen,  few  of  whom  are  accustomed  to  deal  in  that 
commodity."  But,  with  Colonel  Haldane,  he  believes,  of 
all  the  evil  consequences  of  the  act  "that  of  preventing 
marriage  and  promoting  fornication  among  our  industrious 
poor  will  be  most  pernicious."'  Yet  how  simple  would  be 
the  proper  remedy^  for  the  defects  of  the  present  marriage 
laws! 

In  concluding  the  summary  of  this  debate,  singularly 
illustrative  of  the  imaginary  evils  so  often  conjured  up 
against  reform  measures,  the  deep-seated  prejudice  of  the 
English  people  to  publicity  in  matrimonial  engagements 
should  be  noted.  It  seems  that  in  1753,  as  well  as  in  1653 
and  1836,  the  open  procedure  prescribed  by  the  law  gave  a 
certain  shock  to  popular  sentiment.  "It  is  a  peculiar  phe- 
nomenon," says  Friedberg,  "that  the  English  nation,  whose 
whole  political  system  is  interpenetrated  by  the  principle  of 
publicity,  should  look  upon  publicity  in  the  formation  of 
marriage  as  positively  improper;  that  it  should  regard  the 
publication  of  banns  ....  as  an  unjustifiable  violation  of 
modesty."'  In  this  spirit  Horace  Walpole,  ridiculing  the 
Hardwicke  act,  writes  to  Hon.  Seymour  Conway:  "It  is  well 
you  are  married.  How  would  my  lady  A —  have  liked  to 
be  asked  in  a  parish- church  for  three  Sundays  running  ? 
I  really  believe  she  would  have  worn  her  weeds  forever, 
rather  than  have  passed  through  so  impudent  a  ceremony."* 

iTownshend,  in  Cobbett,  loc.  cit.,  55-58. 

2 Banns  and  license  are  unnecessary;  while  clandestine  marriages  of  tLo 
"  scandalous  or  infamous  "  variety  are  so  unimportant  as  to  call  foruo  legislation. 
Bigamy  and  the  hardships  arising  in  difficulty  of  proof  may  be  remedied,  it  is 
alleged,  by  a  law  merely  providing  for  proper  registration  and  making  it  a  rule  that 
the  "legitimacy  of  children  should  never  be  questioned,  after  the  death  of  their 
parents  who  lived  together  as  husband  and  wife,  and  were  generally  reputed  to  be 
so." — Townshend,  in  Cobbett,  loc.  cif.,  49,  50.  Cf.  the  similar  plan  of  Haldane, 
ibid.,  40,  41. 

3FEIEDBEEG,  Geschichte  der  Civilehe,  20, 15. 

*  Horace  Walpole,  Letters,  II,  334-86;  Cobbett,  op.  cit.,  XV,  32,  33. 


458  Matrimonial  Institutions 

According  to  Mr.  Nugent,  "it  is  certain,  that  proclamation 
of  banns  and  a  public  marriage  is  against  the  genius  and 
nature  of  our  people ;  it  shocks  the  modesty  of  a  young  girl 
to  have  it  proclaimed  through  the  parish,  that  she  is  going 
to  be  married ;  and  a  young  fellow  does  not  like  to  be  exposed 
so  long  beforehand  to  the  jeers  of  all  his  companions.'"  In 
fact,  without  defending  banns  as  an  ideal  institution,  one 
cannot  help  reflecting  that  the  final  triumph  of  civil  marriage 
has  already  done  something  to  overcome  the  false  delicacy 
touching  human  sexual  relations  and  responsibilities,  whose 
survival  in  modern  society  is  nevertheless  still  a  serious 
hindrance  to  rational  education. 

By  the  statute  of  1753,^  whose  origin  has  now  been  con- 
sidered, all  marriages,  save  those  of  Quakers  and  Jews  or 
those  of  members  of  the  royal  family,  are  to  be  celebrated 
only  after  publication  of  banns  or  license,  and  only  during 
the  canonical  hours ^  in  an  Anglican  church  or  chapel  where 
"banns  of  matrimony  have  been  usually  published,"  and 
before  an  Anglican  clergyman.  To  solemnize  marriage  in 
any  other  manner  or  in  any  other  place,  or  without  banns 
except  by  special  license  of  the  archbishop,  is  punished  with 
fourteen  years'  transportation,  and  the  marriage  is  declared 
void.  Two  or  more  witnesses  must  be  present.  The  clergy 
are  required  to  keep  registers,  and  the  falsifying  or  destroy- 
ing the  same  is  punished  by  death.     In  the  case  of  banns 

1  Nugent,  in  Cobbett,  loc.  cit.,  19.  Cf.  the  extracts  from  the  Report  of  the  "  Mar- 
riage Laws  Commission,"  1868,  in  Hammick,  Marriage  Law,  354  fE.,  where  the  inade- 
quacy of  banns  and  the  popular  dislike  of  them  are  mentioned, 

2  The  act  of  26  Geo.  II.,  c.  33.  For  the  text,  see  Pickering's  Statutes  at  Large, 
XXI,  124-30;  Evans,  Statutes,  1, 155-60.  For  analysis  and  discussion  of  its  provisions 
see  BuEN  (R.),  Ecclesiastical  Laws,  II,  433;  Hammick,  Marriage  Law,  12-15;  Geaey, 
Marriage  and  Family  Relations,  9,  12-15;  Burn  (J.  S.),  Parish  Registers,  32,  33; 
Blackstone,  Commentaries,  I,  438,  440;  IV,  163;  Lecky,  Eng.  in  18th  Cent.,  I,  531-40; 
idem.  Democracy  and  Liberty,  II,  174, 176  £F. ;  Taswell-Langmead,  Eng.  Const,  Hist., 
750;  Campbell,  CTianceiiors,  VI, 262;  May,  Const.  Hist.,  II,Se2;  Feiedbeeg, Gescftic/^ie 
der  Civilehe,  16,  17;  idem,  Eheschliessung,  355-58;  Oppenheim,  "Ueber  Einfuhrung 
der  Civil-Ehe  in  Eng.,"  ZKR.,  I,  9-11. 

3  From  8  to  12  in  the  morning. 


Rise  op  Civil  Marriage  459 

the  express  consent  of  parent  or  guardian  for  the  marriage 
of  minors  is  not  required.  Such  a  marriage  is  legal  when 
dissent  has  not  been  expressed.'  But  in  the  case  of  license 
the  marriage  of  a  minor — not  being  a  widow  or  a  widower 
— without  the  consent  of  parent  or  guardian  is  absolutely 
void.^  Furthermore,  the  act  declares  that  persons  convicted 
of  solemnizing  "matrimony  in  prisons  and  other  places  with- 
out publication  of  banns  or  license"  shall  be  judged  guilty  of 
felony  and  sentenced  to  fourteen  years'  transportation,  while 
the  marriages  so  solemnized  are  absolutely  null  and  void. 
Precontracts  are  likewise  abolished.  "In  no  case  whatso- 
ever shall  any  suit  or  proceeding  be  had  in  any  ecclesiastical 
court  in  order  to  compel  a  celebration  of  marriage  in  facie 
ecclesiae,  by  reason  of  any  contract  ....  whether  per  verba 
depraesenti  or  per  verba  de  futuroy 

The  general  efPect  of  the  Hardwicke  act  was  undoubtedly 
good.  Publicity  was  secured.  "It  destroyed  the  infamous 
trade  of  the  Fleet  Prison  and  Mayfair  parsons;^  it  enforced 

1  Cf.  Hammick,  Marriage  Law,  13.  Compare  Sayeb,  A  Vindication  of  the  Power 
of  Society  toannull  the  Marriages  of  Minors  (1754),  2ff.,  who  answers  the  arguments 
of  Stebbing  in  the  works  mentioned  in  Bibliographical  Note  X.  This  is  important 
in  tracing  the  rise  of  sound  opinions  regarding  the  proper  sphere  of  social  control; 
and  with  it  may  be  read  to  advantage  Salmon,  Critical  Essay  Concerning  Marriage, 
59  ff.  On  the  ecclesiastical  law  as  to  consent  to  the  marriage  of  minors  see  Poynteb, 
Doctrine  and  Practice  of  the  Ecc,  Courts,  29  ff. ;  and  in  this  connection  may  also  be 
read  Cooke,  Report  of  the  Case  of  Horner  against  Liddiard  upon  ....  Consent  nee, 
to  the  mar.  of  illegit.  Minors  (London,  18(X)) . 

2  The  clause  of  the  act  providing  for  license  is  vigorously  attacked  by  Fey,  Con- 
siderations on  the  Act,  7  ff.,  who  declares  that  "  it  gives  liberty  (for  a  little  money)  to 
revive  Clandestine  Marriages."  On  the  spiritual  law  as  to  license  compare  Poyn- 
TEE,  Doctrine  and  Practice  of  the  Ecc.  Courts,  21  £E. 

3  The  act  took  effect  on  March  25, 1754;  and  between  its  passage  on  June  6  and 
that  date  these  parsons  did  a  roaring  good  business.  The  Gentleman's  Magazine, 
XXIV,  141  (Sunday,  March  24,  1754),  has  the  following: 

"  Being  the  last  day  before  the  commencement  of  the  marriage  act  before  11 
o'clock  45  couple  were  married  at  Mr.  Keith's  chapel,  and  when  they  ceased,  near  1(X) 
pair  had  been  joined  together;  two  men  being  constantly  and  closely  employed  in 
filling  up  licenses  for  that  purpose."  See  Keith's  appeal  for  charity,  because  the 
act  had  reduced  him  "from  a  great  Degree  of  Affluence"  to  " such  a  deplorable 
state  of  misery  in  the  Fleet  Prison,"  in  Ashton,  The  Fleet,  364,  365. 

Clandestine  contracts,  however,  were  not  entirely  put  an  end  to  by  the  Hard- 
wicke act.    In  the  Savoy  chapel  Dr.  John  Wilkinson  and  his  representatives  solem- 


460  Matkimonial  Institutions 

a  regular  public  celebration  after  compliance  with  certain 
preliminary  forms,"  and  it  established  the  principle  of 
parental  consent  "as  evidenced  by  oath  in  case  of  a 
license,  and  by  the  absence  of  any  expression  of  dissent 
in  the  case  of  banns;"  and  "from  this  date  verbal  con- 
tracts of  matrimony  ceased  to  have  any  binding  effect  in 
England ;  solemnization  could  not  be  enforced,  and  damages 
for  breach  of  promise,  recoverable  by  action,  became  the 
only  relief  in  such  cases."' 

III.       THE    PRESENT    ENGLISH    LAW 

There  were,  however,  serious  defects  in  the  act  of  1753. 
It  was  conceived  in  a  spirit  of  bigoted  intolerance  toward 
Roman  Catholics  and  all  dissenters — save  only  Jews  and 
Quakers — who  were  thus  forced  against  their  consciences 
to  accept  the  rites  of  the  established  church;  and  the  law 
was  far  too  rigid  in  matters  of  detail.  The  harsh  treatment 
of  dissenters  is  all  the  more  remarkable  because  "their 
privileges  were  abridged"  by  the  act;  for  previous  to  1753 
they  had  been  at  liberty  to  celebrate  their  marriages  in 
their  own  chapels,  without  submitting  to  the  ritual  of  the 
"church."^  It  is  significant  that  in  the  report  of  debates 
on  the  measure  collected  in  the  Parliamentary  History  not 
a  single  voice  seems  to  be  raised  in  favor  of  the  general 

nized  many  hnndreds  of  marriages  contrary  to  the  provisions  of  the  law ;  but  these 
were,  of  course,  absolutely  void :  Jeaffeeson,  Brides  and  Bridals,  II,  192-202;  BnEN, 
Fleet  Marriages,  13&-41.  Burn  is  in  error  when  he  says  (139)  "  there  does  not  appear 
to  have  been  any  clandestine  marriages  "  at  the  Savoy  "  until  after  the  Marriage  Act." 
Such  a  marriage  took  place  there  in  1596.  Under  date  of  June  14,in  that  year,  W.  Monne, 
Master  of  the  Savoy,  writes  to  Lord  Cobham,  whose  grandchild  and  ward  was  a 
party  to  this  contract,  that  he  has  "  conferred  with  Archb.  of  Canterbury  concerning 
Mr.  Bigge,  the  chaplain  of  the  Savoy  who  performed  the  marriage.  Bigge  said  he 
thought  he  might  well  do  it  because  his  fellow  chaplains  were  in  the  habit  of  marry- 
ing people  without  license.  Archb.  committed  Bigge  to  the  Gate  House  pending 
Cobham's  pleasure,  also  ordered  that  'no  such  disorderly  marriage  shall  be 
offensively  in  the  Savoy  performed.' "—Seporis  of  the  Hist.  Mantiscripts  Com- 
mission, V,  136, 139. 

1  Hammick,  Marriage  Law,  13, 14 ;  cf.  Geaey,  Mar.  and  Fam.  Rel.,  33. 

2  Walpole,  Hist,  of  Eng.,  IV,  69. 


KiSE  OF  Civil  Marriage  461 

principle  of  toleration;  though  one  ceases  to  be  surprised 
by  this  fact  when  he  remembers  the  disfranchisement  of 
non-conformists  and  considers  the  shameful  character  of 
parliamentary  representation  which  was  then  drawn  largely 
from  rotten  or  pocket  boroughs  under  the  control  of  a 
corrupt  oligarchy.'  During  more  than  fourscore  years 
repeated  efforts  were  made  in  vain  to  gain  relief  for  dis- 
senters.^ The  Unitarians^  were  particularly  active  in  the 
struggle  for  religious  and  civil  liberty.  The  bill  of  1826- 
27  introduced  by  William  Smith  in  their  behalf  is  especially 
worthy  of  notice,  because  in  the  committee  it  took  the 
form  of  a  provision  for  civil  marriage  before  a  justice  of  the 
peace,  leading  to  a  very  lively  discussion.  The  Marquis  of 
Lansdowne  defended  the  measure,  not  merely  in  the  interest 
of  the  dissenters  who  by  the  existing  law  were  forced  to  do 
violence  to  their  consciences,  but  also  in  behalf  of  the  clergy 
of  the  established  church  who  should  be  relieved  of  the 
necessity  of  administering  a  religious  rite  for  those  receiving 
it  only  under  compulsion.*     On  the  other  hand,  the  bill  was 

1  C/.  Geeen,  Hist,  of  English  People,  IV,  212, 124, 176  £F.,  257;  May,  Const.  Hist.,  I, 
15  ff.,  263  ff.  By  the  Toleration  Act  of  1  Will,  and  Mary  dissenters  were  formally 
recognized  and  relieved  from  the  pains  and  penalties  attaching  to  non-conformity; 
hence  thereafter  marriages  "  according  to  their  own  forms  and  usages "  were 
"  treated  as  marriages  de  facto."  The  Hardwicke  act  robbed  them  of  this  privilege : 
Hammick,  Marriage  Law,  14. 

2  In  favor  of  the  dissenters  bills  were  introduced,  either  in  the  Commons  or  in 
the  Lords,  in  1782  (Hansard,  Par.  Debates,  2d  series,  1825,  XII,  1236  ff.),  1819  (ibid., 
XL,  1200  ff.,  1504  ff.),  1823  (ibid.,  IX,  967  ff.),  1834  ("  Bills,  Public,"  1834,  II) ;  and  by  Sir 
Robert  Peel  in  1835  ("  Bills,  Public,"  1835,  III).  A  bill  for  registration  of  marriages, 
births,  and  deaths  was  brought  forward  in  1834  ("  Bills,  Public,"  III) ;  and  already  in 
1833  a  special  committee  to  report  on  the  state  of  the  parochial  registers  and  the 
necessary  legislation  was  appointed  by  the  Commons.  This  committee  reported  on 
Aug.  15  of  the  same  year  ("Reports,  Committees,"  1H,33,  XIV).  See  the  history  of 
the  attempts  to  grant  relief  to  dissenters  by  Oppenheim,  "tJber  Einfflhrung  der  CivU- 
Ehe  in  England,"  ZKR.,  I,  8-33. 

3  The  Unitarians  could  not  conscientiously  make  the  declaration  of  belief 
in  the  Trinity  contained  in  the  Anglican  marriage  ritual :  "  I  thee  wed,"  etc.,  "  in 
the  name  of  the  Father  and  of  the  Son  and  of  the  Holy  Ghost " :  Walpole,  Hist,  of 
England,  IV,  69-71,  who  discusses  the  efforts  of  William  Smith  and  Lansdovrae  in 
their  behalf. 

*The  same  argument  is  advanced  by  a  writer  in  the  Quarterly  Review,  LI  (1831), 
493  ff.,  513,  514. 


462  Matrimonial  Institutions 

opposed,  not  only  on  the  old  ground  of  violating  the  sanctity 
of  matrimony,  but  also  because  the  clergy,  by  being  required 
to  proclaim  the  banns  in  such  cases  and  to  certify  the  same 
to  the  justice,  would  thus  suffer  humiliation;  and  for  the 
reason  that  the  proposal  smacked  too  much  of  the  revolution- 
ary ordinance  of  Oliver  Cromwell.'  Every  attempt  to 
gain  justice  for  the  dissenters  failed  until  finally  a  signal 
victory  for  civil  institutions  was  won  in  the  epoch-making 
statute  of  1836, 

The  long  struggle  to  remedy  the  formal  defects  of  the 
Hardwicke  act  met  with  somewhat  earlier  success.  Much 
injustice  and  inconvenience  grew  out  of  the  provision  that 
banns  must  be  proclaimed  in  churches  or  chapels  where 
hitherto  they  had  "usually  been  published."  A  stop  was 
thus  put  to  legal  celebration  in  many  places,  especially  in 
London;  and  "it  was  found  that  even  St.  Paul's  Cathedral 
and  Westminster  Abbey  were  included  in  this  prohibition, 
as  no  publication  of  banns  had  ever  taken  place  in  them."^ 
Accordingly  in  1781  a  marriage  solemnized  in  Buerlyhill 
Chapel,  "erected  in  1765  and  then  duly  consecrated,  and  in 
which  divine  service  had  been  publicly  and  regularly  cele- 
brated ever  since,  and  wherein  banns  of  marriage  had  been 
often  published  and  marriages  celebrated  previous  to  the 
marriage  in  question,"  was  annulled  by  the  court  of  King's 

1  OppENHElM,op.  cit,  13-17 :  "Bills, Public,"  1826-27,  II.  Cf.  also  Walpole,  Hist. 
ofEng.,  IV,  70,  71.  Griffin-Stonesteeet,  Nuptiae  Sacrae :  Objections  to  the  Amended 
Unitarian  Marriage  Bill  (London,  1828),  is  especially  bigoted  in  his  opposition, 
holding  that  the  sanctity  of  matrimony  will  be  violated;  that  the  magistrate  will 
have  religious  functions  thrust  ui)on  him ;  and  concludes  with  the  remark  (38)  that 
"  it  is  no  recommendation  of  this  measure,  that  it  is  in  many  parts  a  mere  transcript 
of  Oliver  Cromwell's  method  of  putting  down  the  olfices  of  the  Church  by  the  Act 
of  1656."  On  the  other  hand,  "  A  Presbyter  of  the  Church  of  England,"  who  objects 
to  allowing  "Socinian  ministers"  a  share  in  the  solemnization  of  marriages,  admits 
that  there  is  a  real  grievance  and  recomjnends  the  "  alternative  of  a  marriage  before 
a  civil  magistrate,  according  to  certain  civil  forms."  To  provide  a  model  (31-37), 
he  reprints  the  whole  of  Cromwell's  ordinance  of  1653.  The  measure  is  opposed  in  a 
spirit  of  intolerance  by  Le  Geyt,  Observations  on  the  Bill  (London,  1827). 

2  Burn,  Parish  Registers,  146;  cf.  Geary,  Mar.  aiid  Fam.  Bel.,  60, 61. 


Rise  op  Civil  Marriage  463 

Bench.'  An  act  was  immediately  passed  to  validate  such 
marriages  already  solemnized;^  and  this  was  followed  by 
various  other  statutes  to  legalize  later  marriages  of  the  same 
kind.^  More  serious  were  the  consequences  of  the  clause 
making  the  express  consent  of  parent  or  guardian  in  case  of 
license  absolutely  essential  to  the  valid  marriage  of  minors. 
Through  disregard  of  this  provision,  and  for  various  other 
trivial  deviations  from  the  letter  of  the  statute,  many  harsh 
cases  of  injustice  arose.  "A  man  was  enabled  to  marry  a 
woman  solemnly  in  the  face  of  the  church,  to  live  with  her 
and  acknowledge  her  publicly  as  his  wife,  and  have  issue  by 
her, — and  25  years  afterwards  to  bring  a  suit  for  annulling 
the  marriage,  on  the  ground  that  he  himself  had  falsely  and 
fraudulently  sworn,  in  order  to  obtain  the  license,  that  she 
was  21  years  of  age,  when  she  was  in  fact  two  months 
younger."*     In  another  case,^  "where  a  father  had  gone  to 

1  Rex r.  Northfield  (1781), 2  Douglas, 658;  Qeaey,  ?oc.cit.;  Burn, op. ctt., 32 n. 2. 

221  Geo.  III.,  c.  53:  Statutes  at  Large,  VIII,  83.  In  the  debate  on  the  bill  for 
this  act  Mr.  Charles  James  Fox,  "who  appears,"  says  Burn,  "to  have  possessed 
an  hereditary  opposition  to  the  Marriage  Act  of  1753,"  declared  "that  all  persons 
who  had  solemnized  marriages  in  any  of  these  new  chapels  were  at  present  liable  to 
transportation.  Under  danger  of  that  penalty  stood  ....  a  vast  number  of  clergy- 
men, and  some  prelates  in  th^  Upper  House ;  but  as  America  would  not  receive  them, 
they  must  go  to  the  Justitia  Hulk,  which  to  be  sure  would  be  a  terrible  thing,  and  he 
hoped  the  house  would  interfere  to  save  these  reverend,  and  right  reverend  gentle- 
men from  so  horrible  a  fate.  It  was  an  absolute  fact  that  several,  if  not  all,  of  the 
Bishops  had  transgressed  in  this  way;  and  by  the  bye,  the. House  might  have  the 
mortification  to  see  Bishops  in  their  lawn  sleeves,  instead  of  preaching  the  word, 
heaving  ballast  on  the  Thames." — Burn,  op.  cit.,  32,  33,  note. 

344  Geo.  III.,  c.  77;  48  Geo.  III.,  c.  127;  11  Geo.  IV.  (1830),  c.  18.  The  statute 
of  6  Geo.  IV.,  unlike  all  the  preceding,  validated  future  marriages  in  churches  or 
chapels  erected  since  26  Geo.  II.,  c.  33:  Geary,  op.  cit.,  61. 

*Hammick,  Marriage  Law,  14,  note,  citing  Sir  John  Stoddaet's  Letter  to  Lord 
Brougham  on  the  Irish  Marriage  Cases  (1844) ,  who  says,  referring  to  the  facts  men- 
tioned in  the  text,  "  that  was  in  the  case  of  Hewett  v.  Bratcher  (1809),  in  which  I  was 
counsel  before  the  High  Court  of  Delegates;  and  that  court  decided  that  agreeably 
to  the  Act  of  1753,  then  in  force,  a  marriage  must,  under  such  circumstances,  be 
annulled."  Compare  also  the  similar  case  of  Johnson  v.  Parker  (1819),  3  Phillim.,  Sd, 
where  "the  husband  obtained  a  declaration  of  nullity  because  he  was  about  six 
weeks  under  age  at  the  date  of  the  marriage,  although  he  had  himself  sworn  on 
applying  for  the  licence  that  he  was  of  age."— Geary,  op.  cit.,  1.5.  Other  cases  are 
mentioned  in  Hansard,  Par.  Debates,  XXXIX,  1466;  XLI,  1445  (1st  series). 

5 Hayes  v.  Watts  (1819),  3  Phillim.,  43. 


464  Matrimonial  Institutions 

America  and  was  supposed  dead,  and  the  mother  had  given 
her  consent,  but  the  father  had  no  knowledge  of  the  mar- 
riage, it  was  declared  void  after  eighteen  years'  cohabita- 
tion;'" for  the  father's  consent,  if  living,  was  absolutely 
necessary.  Nullity  was  even  declared  in  one  instance^  "because 
the  testamentary  guardians  who  had  consented  were  appointed 
by  a  will  which  turned  out  to  be  invalid  because  attested  by 
only  one  witness."^ 

At  length,  after  the  nullification  of  marriage  on  technical 
or  trivial  grounds  had  become  a  "public  scandal"  and  an 
intolerable  hardship  to  individuals,*  a  remedy  was  found  in 
the  act  of  4  George  IV.,  c.  76,  by  which  so  much  of  the 
Hardwicke  act  as  had  not  already  been  superseded^  was 
repealed;  and  new  and  juster  rules  were  substituted.^  But 
this  statute,  whose  more  important  provisions  will  hereafter 
appear,  gave  no  relief  to  Roman  Catholics  or  dissenters. 
To  effect  this,  after  various  futile  attempts,  the  civil-marriage 
law  of  1836  was  enacted,^  simultaneously  with  another  creat- 
ing a  new  system  of  registration.*  These  three  measures, 
with  a  few  later  modifications  or  additions,  constitute  the 
present  law  of  England  relating  to  the  celebration  and  regis- 

1  GKAJtY,  op.  cit.,  14, 15. 

2Reddall  v.  Leddiard  (1820),  3  Phillim.,  256.  This  case  and  others  are  discussed 
by  Phillimoee,  Speech  on  the  Marriage  Act,  23-45,  an  able  exposition  of  the  evils  aris- 
ing under  the  Hardwicke  act. 

sGeaet,  op.  cit.,  15,  note.  *  Compare  Geaey,  op.  cii.,  15. 

5  In  the  preceding  year,  by  3  Geo.  IV.,  c.  75,  the  provision  of  the  Hardwicke  act 
invalidating  marriage  of  minors  by  license  without  consent,  and  some  other  defects, 
were  remedied ;  but  the  eighth  and  following  sections  of  the  law  prescribing  more 
"stringent  regulations  to  prevent  clandestine  marriageby  licence,"  were  repealed  by 
4  Geo.  IV.,  c.  17,  which  enacted  that  "licences  should  be  granted  in  the  case  of 
minors  as  under  Lord  Hardwicke's  act":  cf.  Hammick,  Marriage  Lain,  15,  note; 
Haxs.\kd,  Debates,  2d  series,  VII,  702,  1635  (Commons);  1128,  1143,  1198,  1373,  1452 
(Lords) ;  and  Phillimoee,  Speech  o/i  the  Marriage  Act,  45  ff. 

6 The  act  of  4  Geo.  IV.,  c.  76,  may  be  found  in  Hamjiick,  op.  cit.,  26&-80;  and 
Bden,  Ecclesiastical  Laws,  II,  43Sd-h ;  as  also  in  the  Statutes  at  Large  for  that  year. 
Cf.  Hansaed,  Debates,  2d  series,  VIH,  80,  87, 123,  235,  623;  IX,  540,  649;  Annual  Regis- 
ter, LXV,  89-93. 

'6  and  7  Will.  IV.,  c.  85:  Statutes  at  Large,  510-25;  Buen,  op.  cit.,  II,  433w  ff.; 
Hammick,  op.  cit.,  282-96. 

86  and  7  Will.  IV.,  c.  86:  Statutes  at  Large,  526-44;  Hammick,  op.  cit.,  297-306. 


Rise  op  Civil  Marriage  465 

tration  of  marriages.     An  analysis  of  their  leading  provisions 
will  now  be  presented.' 

It  will  be  convenient  first  to  notice  the  main  features  of 
the  system  of  registration.^  For  the  entire  kingdom  is 
appointed  by  the  lord  treasurer  and  the  lords  commissioners 
of  the  treasury  a  registrar-general  whose  office  is  in  London 
and  Westminster.  Below  the  general  registrar  of  births, 
deaths,  and  marriages  are  the  "superintendent  registrars," 
one  in  each  union  or  parish,  appointed  by  the  Board  of 
Guardians  of  the  Poor ;  or,  in  default  of  such  appointment, 
they  may  be  nominated  by  the  general  registrar.  The  post 
is  usually  filled,  however,  by  the  clerk  of  the  Board  of 
Guardians.  Below  the  superintendent  registrars  are  the 
registrars  of  the  districts.  These  are  of  two  kinds:  the 
registrar  of  births  and  deaths,  appointed  in  the  same  way 
as  the  superintendent  registrars;  and  the  registrars  of  mar- 
riages, nominated  by  the  superintendent  of  the  union  subject 
to  the  approval  of  the  guardians,*  or  of  the  registrar- 
general,  as  provided  by  a  later  act* 

Co-ordinate  with  the  civil  registrars  of  marriages  for  the 
district  are  the  ministers  of  the  Church  of  England,  and  the 
ministers  or  accredited  officers  of  other  denominations,  each 
of  whom  is  required  every  quarter  to  transmit  abstracts  of 
all  registrations  to  the  superintendent,  who,  in  his  turn, 
reports  to  the  re^strar-general.  The  division  of  the  union 
into  districts,  which  usually  correspond  to  the  parishes,  is 

1  For  the  debates  on  the  acts  of  Will.  IV.  see  Hansaed,  Debates,  3d  series,  XXXI, 
367-86 ;  XXXII,  1093 ;  XXXIV,  490-94,  539, 1021-39, 1309.  Cf.  the  Quarterly  Review,  LVII, 
248-53,  for  an  article  praising  the  conservative  course  of  the  Lords. 

2 For  summary  and  discussion  of  the  registration  laws  see  Bohn,  Political 
CyclopcBdia,  TV,  625-28;  Smith,  The  Parish,  187-89,  457-60;  Friedbeeg,  Eheschlies- 
sunp,  413-19;  RoBEETSON,  in  Britannica,  XV,  566;  Hammick,  Marriage  Law,  106  ff., 
166-90,  passim;  Geaey,  Mar.  and  Fam.  Rel.,  ISi-Sl,  passim  as  per  index;  Mooee, 
How  to  be  Married,  60  ff. ;  Eenst,  Treatise  of  Mar.  and  Div.,  10  ff. 

3  The  appointment  of  the  district  registrars  of  marriages  is  provided  for,  not  by 
the  registration  act,  but  by  the  marriage  act  of  6  and  7  Will.  IV.,  c.  85,  sec.  17. 
♦By  19  and  20  Vict.,  c.  119,  sec.  15 ;  Hammick,  op.  cit.,  327. 


466  Matrimonial  Institutions 

the  duty  of  the  guardians,  subject  to  the  approval  of  the 
registrar-general. 

Marriage  within  the  Church  of  England  is  regulated  by 
the  statute  of  4  George  IV.,  c.  76,  and  may  be  solemnized 
in  the  parish  church  or  a  chapel  licensed  by  the  bishop,' 
after  publication  of  banns  for  three  successive  Sundays  at 
morning  service;  or  on  production  of  the  certificate  of  a 
superintendent  registrar,  which  is  equivalent  to  banns.' 
Parent  or  guardian  may  forbid  the  marriage  of  minors,  but 
in  case  of  banns  express  consent  is  not  required.  License 
in  place  of  banns  may  be  granted  by  the  archbishop,  bishop, 
or  other  authority,  but  only  for  solemnization  within  the 
church  of  the  parish  in  which  one  of  the  parties  has  resided 
"for  the  space  of  fifteen  days  preceding."  Before  "a  licence 
can  be  granted  an  oath  must  be  taken  as  to  the  fact  of 
residence;"  that  there  is  no  legal  impediment;  and  that  the 
consent  of  parent  or  guardian  has  been  obtained,  if  either 
of  the  parties  is  under  twenty-one  years  of  age.^  The 
"marriage  must  be  celebrated  within  three  months  after 
banns  or   licence,    and   between  the  hours*   of   eight  and 

1  "With  the  consent  of  the  patron  and  the  incumbent." — 4  Geo.  IV.,  c.  76,  sec.  3: 
Hammick,  op.  cit.,  270.  See  further  details  as  to  the  places  licensed,  in  6  and  7  Will. 
IV.,  c.  85,  sees.  26  fE. 

2  By  6  and  7  Will.  IV.,  c.  83,  sec.  1.  But  by  19  and  20  Vict.,  c.  119,  sec.  11,  celebra- 
tion by  a  clergyman  of  the  Church  of  England  on  certificate  of  the  superintendent 
registrar  is  not  obligatory :  c/.  Hammick,  op.  cit.,  87, 282,  313 ;  Geaey,  Mar,  and  Fam. 
Bel.,  58,  80,  85,  88,  94. 

"In  the  year  1884,  out  of  144,344  marriages  according  to  the  rites  of  the  Estab- 
lished Church,  128,107,  or  89  per  cent.,  were  by  banns,  12,188,  or  8.5  per  cent.,  by  ordin- 
ary licence,  68,  or  .05  per  cent.,  by  special  licence  (of  the  archbishop),  and  3,523,  or  2.4 
per  cent.,  on  superintendent  registrar's  certificate." — Hammick,  op.  cit.,  63,  note.  In 
1889,  698  marriages  in  every  1,000  were  according  to  the  rites  of  the  English  church; 
and  of  these  only  sixteen  were  by  certificate:  Geaey,  op.  cit,  58,  note.  See  the  dis- 
cussion and  the  tables  of  statistics  of  marriages,  1841-88,  in  Moobe,  How  to  be 
Married,  111-17, 166, 167. 

3  See  the  form  of  oath  in  Gbaey,  op.  cit.,  49  n.  3;  and  Mooee,  op.  cit,  120,  who 
gives  all  the  marriage  forms.  If  the  "  defendant  swears  falsely  it  is  not  perjury,  and 
only  misdemeanour  "  (Eegina  v.  Chapman,  1849,  1  Den.,  432) ;  and  "  the  spiritual 
Court  has  no  jurisdiction  to  punish  such  false  oath"  (Phillimorev.  Machon,  1876, 
1  P.  D.,  481) ;  Geaey,  op.  cit,  49,  50. 

i  Now  between  the  hours  of  8  in  the  forenoon  and  3  in  the  afternoon :  By  49  and 
50  Vict.,  c.  14:  Hammick,  Marriage  Law,  341. 


Rise  of  Civil  Marriage  467 

twelve  in  the  morning.'"  Care  is  taken  to  avoid  the  hard- 
ships arising  from  the  rigidness  of  the  Hardwicke  act. 
"The  penalty  of  nullity"  is  "confined  to  the  case  of  persons 
wilfully  procuring  the  celebration  of  marriage  without  due 
publication  of  banns,  or  without  a  licence  from  a  person 
having  authority  to  grant  the  same,  or  by  any  person  not  in 
holy  orders,  or  elsewhere  than  in  a  church  or  chapel  wherein 
banns"  may  "be  lawfully  published."  The  want  of  consent 
of  parent  or  guardian,  in  case  of  minors,  does  not  invalidate 
a  marriage  by  license;  but  "in  the  event  of  any  fraud 
practiced  to  procure  the  contract,  the  guilty  party"  forfeits 
"all  property  accruing  from  the  marriage,"^ 

The  institution  of  banns,  as  already  seen,  is  the  ancient 
device  of  the  church  to  secure  publicity.^  During  the  ages 
it  has  served  a  useful  purpose,  though  from  its  very  nature, 
even  under  the  most  stringent  regulations,  it  is  capable  of 
serious  abuse.  But  there  are  unmistakable  signs  that  it  has 
about  run  its  course  and  must  soon  yield  to  more  effective 
methods,  such  as  those  prescribed  by  the  civil-marriage  act. 
The  "  unsuitableness  of  banns  to  the  present  state  of  society," 
remarks  Mr.  Hammick,  appears  as  early  as  18G8  in  the  report 
of  the  Marriage  Law  Commissioners.*  They  say  that  "in 
populous  places  it  seems  universally  agreed  that  no  real 
publicity  is  obtained  by  banns,  which  afford  no  safe-guard 
against  improvidence,  illegality,  or  fraud,  and  are  frequently, 
from  their  great  number,  an  inconvenient  and  unseemly 
interruption  to  divine  service."  The  old  sentiment  against 
publicity  is  a  strong  motive  for  evasion.  "The  evidence 
which  we  have  received,"  add  the  commissioners,   "abun- 

1  Compare  the  clear  summary  of  Robeetson,  in  Britannica,  XV,  566 ;  Bdsn,  Ecc. 
Laws,  II,  433/-7i ;  Mooee,  How  to  be  Married,  1-23. 

2  Hammick's  summary  in  Marriage  Law,  15. 

3  Above,  chap,  viii,  sec.  iv,  pp.  359  ff. 

*  Hammick,  op.  cit.,  65.  Cf.  Report  of  the  Royal  Commission,  1868,  53-58,  34,  36-38, 
for  the  responses  of  various  lay  and  ecclesiastical  persons. 


468  Matrimonial  Institutions 

dantly  proves  that  the  dislike  of  this  mode  of  publication 
tends  to  promote  clandestinity  rather  than  to  prevent  it,  by 
inducing  many  persons  to  resort  for  marriage  to  places  where 
they  are  unknown.'"  Nor  does  the  testimony  against  the 
efficiency  of  banns  come  from  lay  sources  alone.  The  bishop 
of  Durham,  in  this  same  report,  declares  that  "at  present 
there  is  no  punishment  to  any  party  making  a  false  state- 
ment" in  order  to  have  banns  published  in  a  parish  where 
he  does  not  reside;  "whilst  it  is  quite  impossible  for  the 
clergyman,  who  is  now  by  law  punishable  for  celebrating 
such  marriages,  to  ascertain  the  falsehood  of  such  state- 
ments, as  his  time,  if  his  parish  be  large,  is  entirely  occupied 
by  his  other  necessary  duties."  Hence  he  believes  that  it 
would  be  "advantageous  to  assimilate  the  law  to  that  which 
regulates  the  notice  of  banns  at  the  registry,  and  to  make  a 
false  statement  in  either  case  perjury."^  In  like  spirit  the 
bishop  of  Ely  refers  to  the  difficulty  of  the  clergyman's 
making  suitable  examination.  "All  such  inquiries,"  he  says, 
"are  inevitably  left  to  the  parish  clerk,  whose  interest  it  is 
to  inquire  as  little  as  possible.  Hence,  if  any  persons  desire 
to  contract  an  illegal  marriage,  they  choose  one  of  the  popu- 
lous parishes  of  our  large  towns,  where  they  readily  escape 
notice."*  The  uselessness  of  banns  in  such  places  is  further 
made  very  clear  "not  only  by  ninety -nine  couples  being 
asked  on  one  Sunday  at  St.  Pancras,  but  also  by  189  couples 
being  asked  in  the  cathedral  church  at  Manchester  on  the 
11th  December,  1864,  and  202  couples  on  the  10th  December, 
1865,"  while  on  this  last-named  day  at  St.  Mary's,  Lambeth, 
the  banns  of  125  couples  were  published.     In  many  of  these 

1  Report,  xlii ;  in  Hamuice,  op.  cit.,  65,  note. 

2  Rev.  S.  C.  Wilks,  in  his  Banns,  a  Railroad  to  Clandestine  Marriages  (1864), 
proposed  "  a  simple  form  of  declaration,  to  be  incorporated  with  the  Banns  Book  " : 
Hammick,  op.  cit.,  66,  note. 

3  From  suggestions  made  to  the  Marriage  Law  Commissioners,  and  published  in 
their  Report,  1868:  in  Hammick,  op.  cit.,  354-62. 


Rise  of  Civil  Marriage  469 

cases,  merely  the  names  were  mentioned,  "unaccompanied 
by  any  announcement  of  condition  —  whether  bachelors, 
widows,"  or  spinsters.' 

The  civil-marriage  act  of  1836  owes  its  adoption  mainly 
to  the  influence  and  exertion  of  Lord  John  Russell,  by  whom 
it  was  proposed.  In  a  measure,  however,  the  way  had  been 
cleared  for  it  by  the  bill  of  the  preceding  year  introduced  by 
Sir  Robert  Peel,  This  was  received  in  a  spirit  of  conciliation 
and  compromise,  showing  that  the  period  of  harsh  intolerance 
was  fast  approaching  its  end.^  The  bill  failed  of  passage, 
mainly  because  as  a  half-way  measure  it  did  not  satisfy  the 
non-conformists.  For  it  permitted  the  civil  form  of  marriage 
only  to  those  declaring  their  unwillingness  to  accept  the 
established  rites;  and  thus,  it  was  asserted,  a  stigma  would 
be  put  upon  the  dissenters  to  whom  matrimony  was  not  less 
holy  than  it  was  to  the  adherents  of  the  English  church.' 
Moreover,  the  magistrate  of  the  hundred  before  the  marriage 
was  solemnized  was  required  to  send  the  certificate  to  the 
clergyman  of  the  parish  for  registration.*  But  it  is  highly 
significant  that  in  the  debate  proposals  were  made  involving 

1  Suggestion  of  Major  Graham,  late  Registrar  General,  in  the  commissioners' 
Report :  Hammick,  op.  cit.,  356 : 

"  Without  proposing  that  banns  should  be  prohibited,  the  commissioners  recom- 
mend that  the  publication  should  not  be  required  by  law  as  a  condition  either  of  the 
lawfulness  or  of  the  regularity  of  marriage,  being  of  opinion  that '  every  useful  pur- 
pose which  can  be  answered  by  the  publication  of  banns  in  the  Established  Church 
may  be  equally  answered  by  the  mere  fact  of  notice  to  the  officiating  minister.' " — 
Hammick,  op.  cit.,  65.  In  general,  on  the  present  law  of  banns,  see  ibid.,  62-80; 
Ernst,  Treatise  of  Mar.  and  Div.,  8;  Geaey,  Mar.  and  Fam.  Rel.,  37-46,  where  the 
judicial  decisions  are  cited ;  and  Moobe,  Hotv  to  be  Married,  1 11. 

2  On  asking  leave  to  present  the  bill,  March  17,  1834,  Sir  Robert  Peel  delivered 
an  elaborate  speech  explaining  the  need  of  reform  and  giving  a  history  of  the 
attempts  to  remedy  the  hardships  arising  from  the  existing  marriage  laws  since 
1753.  His  speech  was  well  received  by  all  parties:  see  the  summary  of  Peel's  speech 
and  of  the  debate  on  the  bill  in  Oppenheim,  in  ZKR.,  I,  1&-33.  In  general  on  the 
struggle  for  relief  of  dissenters  see  May,  Const.  Hist.,  11,  .362-64,  392-95;  Fkiedbeeg, 
Eheschliessung,  391-401;  Fischel,  Eng.  Const.  (London,  1803),  84. 

3 Lord  John  Russell's  speech:  Oppenheim,  in  ZKR.,  I,  34;  cf.  ibid.,  31;  and 
Beaed,  Notes  on  Lord  John  RusselVs  Mar.  Bill  (London,  1834),  demanding  full  civil 
marriage  for  dissenters,  not  mere  "relief"  through  the  Church  of  England. 

<M0LESW0ETH,  Hist.  of  Eng.,  I,  339;  Waxpole,  Hist,  of  Eng.,  R',  71,  72. 


470  Matrimonial  Institutions 

the  essential  elements  of  the  two  great  measures  of  the  next 
year.  A  system  of  civil  registration  of  births,  deaths,  and 
marriages  was  suggested ;  while  it  was  urged,  either  that  the 
civil  form  of  solemnization  should  be  made  optional  for  all, 
not  merely  restricted  to  non-conformists;  or  else  it  should 
be  made  obligatory  for  all,  leaving  it  free  to  the  parties  in 
every  case,  after  the  lay  ceremony,  to  avail  themselves  of  the 
rites  of  their  own  religious  body.' 

Nevertheless  the  act  of  1836  was  adopted  only  after  a 
prolonged  contest  in  the  House  of  Commons.^  By  this 
statute  the  religious  celebration  prescribed  by  the  Anglican 
rubric  is  preserved,  and  two  additional  methods  of  procedure 
are  created :  (1)  by  certificate  of  the  superintendent  registrar 
without  license;  (2)  or  by  such  certificate  with  a  license. 

When  procedure  is  by  the  first  method,^  notice  must  be 
given  "to  the  superintendent  registrar  of  the  district  within 
which  the  parties  shall  have  dwelt  for  not  less  than  seven 
days"  previous.  This  notice  is  then  entered  in  a  marriage 
notice  book  "  open  at  all  reasonable  times  without  fee  to  all 
persons  desirous  of  inspecting  the  same;"  and  thereafter 
for  twenty-one  days  the  notice  or  a  true  copy  is  to  be  sus- 
pended or  affixed  "in  some  conspicuous  place  in  the  office" 
of  the  superintendent.*  "  In  the  body  or  at  the  foot "  of  the 
notice  a  "solemn  declaration"  as  to  residence,  necessary 
consent,  and  the  absence  of  impediment  of  any  kind  must 
be  subscribed  by  one  of  the  parties.^     After  twenty-one 

iOppenheim,  in  ZKR.,  I,  31,  32.  The  bill  was  not  satisfactory  to  Lord  John 
Eussell ;  hence  it  was  dropped  when  he  superseded  Peel  as  prime  minister. 

2  For  a  contemporary  account  of  the  debate  on  the  bill  see  the  Annual  Register, 
LXXVni,  122-34 ;  a  summary  by  Oppenheim,  in  ZKR.,1,3SS.',  also  Moleswoeth, 
Hist,  of  Eng.,  I,  386-88 ;  Walpole,  Hist,  of  Eng.,  IV,  69-73.  See  Hansaed,  Debates,  as 
cited  above. 

3  On  marriage  by  certificate  without  license  see  Mooee,  How  to  be  Married,  60ff. ; 
Geaey,  Mar.  and  Earn.  Rel.,  80  ff.,  85  ff. ;  Hammice,  Marriage  Law,  118  S.,  127  ff. 

i  By  19  and  20  Vict.,  c.  119,  sees.  3-5. 

5 By  19  and  20  Vict.,  c.  119,  sec.  2.  Cf.  Eobeetson,  in  Britannica,  XV,  566;  Buen, 
Eccl.  Laws,  II,  433a;-^;  Hammick,  Marriage  Law,  89  fE.,  319,  320;  Geaey,  Mar.  and 
Fam.  Rel.,  80-85. 


Rise  op  Civil  Marriage  471 

days,'  if  no  valid  objection  be  filed  by  parents  or  others,  a 
certificate  is  issued  by  the  superintendent,  and  the  marriage 
may  be  celebrated  at  any  time  within  three  months  of  the 
entry  of  the  notice.'^  After  issuing  the  certificate  the  mar- 
riage may  be  celebrated  in  either  of  the  following  forms: 

(1)  Before  the  superintendent  registrar,  in  the  presence  of 
a  district  registrar  and  two  witnesses — a  mere  declaration 
of  assent  and  no  religious  rites  whatever  being  required. 

(2)  In  any  registered  building  by  a  minister  of  any  sect 
according  to  the  religious  rites  of  the  same.  Here  also  the 
registrar  of  the  district  and  two  witnesses  must  be  present. 

(3)  According  to  the  rites  of  the  Jews  and  Quakers  in  duly 
certified  buildings.  A  building  may  be  registered  by  the 
superintendent  registrar  on  receipt  of  a  written  petition 
from  "any  proprietor  or  trustee,"  accompanied  by  a  certifi- 
cate signed  in  duplicate  by  twenty  householders  at  the  least, 
that  such  building  has  been  used  by  them  during  one  year 
at  the  least  as  their  usual  place  of  public  worship  and 
that  they  are  desirous  that  the  place  shall  be  registered.' 

(4)  Marriages  may  also  be  solemnized  by  certificate  in  lieu 
of  banns  in  an  Anglican  church  or  chapel,  if  the  consent 
of  the  minister  be  obtained.*  In  all  cases  the  place  of  mar- 
riage must  be  mentioned  in  the  certificate,  and  the  celebra- 
tion must  occur  between  the  hours  of  8  in  the  forenoon  and 
3  in  the  afternoon,^ 

1  In  the  interval  the  notice  was  originally  to  be  read  by  the  clerk  of  the  Board  of 
Guardians  at  their  sessions  for  three  successive  weeks:  Feiedbeeg,  Eheschliessung, 
416;  Bden,  Eccl.  Laws,  II,  43Sy.    This  provision  is  repealed  by  19  and  20  Vict.,  c.  119. 

2  Cf.  19  and  20  Vict.,  c.  119,  sec.  4.  The  form  of  certificate  is  given  by  Hammick, 
Marriage  Lata,  333,  334 ;  Mooee,  How  to  be  Married,  148.  AU  the  forms  are  given  by 
MOOEE,  ibid.,  120-63. 

3  6  and  7  Will.  IV.,  c.  85,  sec.  18.  Cf.  BvRti, Eccl.  Laws,  II,  43366. ;  BoHN,  Pol.  Cyc., 
m,  329;  Feiedbeeg,  op.  cit.,  413-15;  Hammick,  op.  cit.,  118  ff.,  122  ff. 

*  BuEN,  £ccl.  Laws,  11,4.33a;;  Robeetson,  in  Britannica,  XV,  .567;  Feiedbeeg, 
op.  cit.,  416;  BoHN,  op.  cit..  Ill,  322. 

5  Between  8  and  12  in  the  forenoon  by  6  and  7  WUl.  IV.,  c.  85,  sec.  20,  This  was 
changed  by  49  and  50  Vict.,  c.  14,  sec.  1. 


472  Matrimonial  Institutions 

If  the  parties  wish  to  avoid  delay  and  so  great  publicity, 
they  may  proceed  by  the  superintendent's  certificate  and 
license.  These  may  be  obtained  on  one*  full  day's  notice  to 
the  registrar  of  "the  district  in  which  one  of  the  persons 
resides,  together  with  a  declaration  that  he  or  she  has 
resided  for  fifteen  days  therein,  that  there  is  no  impediment, 
and  that  the  necessary  consents  if  any  have  been  obtained. 
The  notice  is  not  exhibited  in  the  registrar's  office."^  After 
obtaining  the  license,  the  marriage  may  be  celebrated  in 
either  of  the  first  three  modes  above  mentioned;  but  no 
superintendent's  license  may  be  issued  for  a  marriage  accord- 
ing to  the  forms  of  the  English  church,  that  right  being  still 
an  "ecclesiastical  monopoly."  Any  person  guilty  of  wilfully 
making  any  false  statement  in  procuring  certificate  or  license 
is  liable  to  the  penalties  of  perjury;'*  and  if  any  persons 
"knowingly  and  willfully  intermarry,"  in  any  place  other 
than  that  mentioned  in  the  certificate  or  without  notice,  cer- 
tificate, or  license,  as  required  by  law,  or  in  the  absence  of 
the  registrar  where  his  presence  is  required,  their  marriage, 
except  in  certain  specified  cases,  is  null  and  void.*  False 
statements  as  to  consent  subjects  the  offender  to  the  penalties 
of  perjury,  but  does  not  invalidate  the  marriage. 

As  to  the  form  of  civil  contract,  it  is  only  essential  that 
somewhere  in  the  ceremony  the  following  declarations  be 
introduced.     Each  of  the  parties  must  say: 

"I  do  solemnly  declare,  that  I  know  not  of  any  lawful 
impediment  why  I,  A.  B.,  may  not  be  joined  in  matrimony 
to  C.  D." 

1  Original  act  said  "  seven  days  " :  Burn,  op.  cit.,  II,  433aa,  changed  by  19  and  20 
Vict.,  c.  119,  sec.  9.    Cf.  Geary,  Mar.  and  Fam.  Eel.,  87;  Hammick,  cp.  cit.,  324. 

2EOBEKTSON,  in  Britannica,  XV,  567;  Btjkn,  op.  cit.,  II,  iS3z-bb. 

3  Ee-enacted  by  19  and  20  Vict.,  c.  119,  sec.  18. 

i  By  6  and  7  Will.  IV.,  c.  85,  sec.  42.  Cf.  Bohn,  Pol.  Cyc,  III,  324;  Buen,  op.  cit, 
II,  433m  ;  Hammick,  op.  cit.,  295. 


KisE  OP  Civil  Marriage  473 

And  each  must  say  to  the  other: 

"I  call  upon  these  witnesses  here  present  to  witness  that 
I,  A.  B.,  do  take  thee,  C.  D.,  to  be  my  lawful  wedded  wife 
(or  husband)." ' 

Thus  English  marriage  ends,  as  it  began,  in  a  simple 
contract;  but  the  state  has  succeeded  in  imposing  upon  it 
the  condition  of  publicity — a  task  which  the  church  first 
attempted,  but  failed  to  accomplish.^ 

1 6  and  7  WiU.  IV.,  c.  85,  sec.  20.  Cf.  Burn,  op.  cit.,  II,  WScc ;  Bohn,  op.  cit.,  HI, 
323;  Hammick,  op.  cit.,  289,  145;  Mooee,  How  to  be  Married,  49. 

2  By  the  act  of  7  and  8  Vict.,  c.  81  (1844),  supplemented  by  34  Vict.,  c.  110,  and  26 
and  27  Vict.,  c.  27,  the  essential  features  of  6  and  7  Will.  IV.,  c.  85,  wore  adopted  for 
Ireland,  the  proximate  cause  being  the  excitement  aroused  by  the  case  of  the  QuceD 
V.  Millis,  1843:  see  chap,  vii,  sec.  ii,  p.  316,  above;  and  also  Hammick,  Marriage  Law, 
232-39;  Geary,  Mar.  and  Fam.  Rel.,  557  ff. 

In  Scotland  except  as  restricted  by  19  and  20  Vict.,  c.  96,  the  principles  of  the 
canon  law  are  still  in  force,  "  subject  only  to  such  modifications  as  it  has  undergone 
from  time  to  time  by  the  application  of  the  rules  of  evidence  established  in  that 
country,  and  the  course  of  judicial  decisions"  (Hammick,  op.  cit.,  221).  But  in  18.56 
by  19  and  20  Vict.,  c.  96,  called  Lord  Brougham's  Act,  for  a  contract  to  be  valid,  the 
parties  must  have  resided  in  Scotland  at  least  twenty-one  days  preceding  the  cere- 
mony. This  put  an  end  to  "  Gretna  Green  "  weddings,  but  otherwise  private  contracts 
are  still  legal.  Thus  three  kinds  of  marriages  are  rScognized:  (1)  "regular  mar- 
riages "  before  a  minister  according  to  custom  or  statute ;  (2)  "  irregular  marriages  " 
per  verba  de  praesenti ;  (3)  "  irregular  marriages  "  per  verba  de  futuro,  subscquente 
copula;  but  in  this  case  the  contract  must  be  written  or  proved  by  confession  on 
oath :  Hammick,  op.  cit,,  221  ff.  That  Scotch  marriages  are  binding  in  England  was 
established  by  the  celebrated  judgment  of  Lord  Stowell  in  Dalrymple  v.  Dalrymple 
in  1811 :  Dodson,  A  Report  of  the  Judgment,  1  ff.,  97  ft'. ;  Stephens,  Laws  of  the  Clergy. 

I,  672,688;  Friedberg,  Eheschliessung,i26,i2.T;  Kent,  Commentaries,  II,  87.  In  gen- 
eral, see  Geary,  op.  cit.,  531  ff. ;  Fkiedbeeg,  op.  cit.,  428,  437-59;  idem,  Geschichte  der 
Civilehe,lSS.;  MooRE,  How  to  be  Married,  85  ff.;  Robertson,  in  Britannica,  XV, 
567;  Tegg,  The  Knot  Tied,  216-23  (Gretna  Green);  Jeaffreson,  Brides  and  Bridals, 

II,  203-16  (Gretna  Green);  Glasson,  Histoire  du  droit  et  des  itust.,  VI,  162-69; 
Wharton,  Laws  Rel.  to  Women,  265-98  (present  English  law),  298-303  (Scotch  law); 
Stephens,  Laws  of  the  Clergy,  1, 671-779;  Caelier,  Mar.  aux  &tats-Unis,  41  ff. 


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